                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Elder and Kelsey
Argued at Chesapeake, Virginia


MELVILLE DEAN OLSON
                                                               MEMORANDUM OPINION* BY
v.     Record No. 2462-06-1                                      JUDGE LARRY G. ELDER
                                                                   FEBRUARY 26, 2008
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                              A. Joseph Canada, Jr., Judge

                 Afshin Farashahi (Afshin Farashahi, P.C., on brief), for appellant.

                 Eugene Murphy, Senior Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Melville Dean Olson (appellant) appeals from his conditional pleas of guilty to charges of

murder, conspiracy to commit robbery, burglary, wearing a mask in public, two counts of

robbery, three counts of abduction with intent to extort money, and seven related counts of using

a firearm. On appeal, he contends the trial court erroneously denied his motion to suppress

evidence he contended was obtained in violation of his Fourth and Fifth Amendment rights under

the United States Constitution and his co-extensive rights under the Virginia Constitution. We

hold the trial court’s denial of the motion to suppress was not error. Thus, we affirm appellant’s

convictions, subject to remand only for correction of a clerical error.1


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
          The transcript of the hearing on the motion to suppress reflects that appellant entered
conditional pleas of guilty in order to preserve his right to appeal the court’s denial of his motion
to suppress. However, the conviction and sentencing orders do not indicate the guilty pleas were
conditional. Because the transcript reflects the conditional nature of the pleas and the
Commonwealth does not contend the pleas were not conditional, we remand the matter to the
trial court for the sole purpose of correcting the clerical error in the conviction and sentencing
                                                  I.

                                                 A.

                       SEIZURE UNDER THE FOURTH AMENDMENT

       Generally, evidence obtained as the result of a search or seizure that violates a

defendant’s Fourth Amendment rights is inadmissible at a criminal trial and must be suppressed.

E.g., Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L. Ed. 2d 1081, 1090 (1961).

               In reviewing the denial of a motion to suppress evidence claiming
               a violation of a person’s Fourth Amendment rights, we consider
               the facts in the light most favorable to the Commonwealth, the
               prevailing party at trial. The burden is on the defendant to show
               that the trial court committed reversible error. . . . We will review
               the trial court’s application of the law de novo.

Malbrough v. Commonwealth, 275 Va. 163, 168-69, 655 S.E.2d 1, 3 (2008). As to the facts, an

appellate court “‘should take care both to review findings of historical fact only for clear error

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

enforcement officers.’” Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27

(2000) (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed.

2d 911, 920 (1996)).

       Fourth Amendment jurisprudence recognizes three categories of police-citizen contact:

“(1) consensual encounters, (2) brief, minimally intrusive investigatory detentions, based upon

specific, articulable facts, commonly referred to as Terry stops, see Terry v. Ohio, 392 U.S. 1, 88

S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and (3) highly intrusive arrests and searches founded on

probable cause.” Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d 744, 747

(1995). Consensual encounters “‘need not be predicated on any suspicion of the person’s



orders to reflect that appellant’s convictions were based on conditional guilty pleas. See Tatum
v. Commonwealth, 17 Va. App. 585, 592, 440 S.E.2d 133, 138 (1994); see also Code
§ 8.01-428(B).

                                                -2-
involvement in wrongdoing,’ and remain consensual ‘as long as the citizen voluntarily

cooperates with the police.’” Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870

(1992) (quoting United States v. Wilson, 953 F.2d 116, 121 (4th Cir. 1991)). “‘As long as the

person to whom questions are put remains free to disregard the questions and walk away, there

has been no intrusion upon that person’s liberty or privacy as would under the Constitution

require some particularized and objective justification.’” Greene v. Commonwealth, 17

Va. App. 606, 610, 440 S.E.2d 138, 140 (1994) (quoting United States v. Mendenhall, 446 U.S.

544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980)).

       “A seizure occurs when an individual is either physically restrained or has submitted to a

show of authority.” McGee v. Commonwealth, 25 Va. App. 193, 199, 487 S.E.2d 259, 262

(1997) (en banc). “Whether a seizure has occurred . . . depends upon whether, under the totality

of the circumstances, a reasonable person would have believed that he or she was not free to

leave.” Id. at 199-200, 487 S.E.2d at 262.

               Various factors have been identified as relevant in determining
               whether a seizure has occurred, including the threatening presence
               of a number of police officers, the display of weapons by officers,
               physical contact between an officer and a citizen, an officer’s
               language or tone of voice compelling compliance, the retention of
               documents requested by an officer, and whether a citizen was told
               that he or she was free to leave. The decision whether the
               encounter was consensual must be made based on the totality of
               the circumstances.

Harris v. Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003) (citations omitted). As

the Virginia Supreme Court has recently observed in this context,

               There is good reason for the rule that appellate courts must defer to
               the factual findings of the trial judge in Fourth Amendment cases.
               The fact patterns in such cases arrive in infinite variety, seldom or
               never exactly duplicated. Moreover, they involve consideration of
               nuances such as tone of voice, facial expression, gestures and body
               language seldom discernable from a printed record. The
               controlling inquiry [in determining whether a person was seized] is

                                               -3-
               the effect of such matters on a reasonable person in the light of all
               the surrounding circumstances.

Malbrough, 275 Va. at 171, 655 S.E.2d at 5.

       Where a suspect is seized in violation of the Fourth Amendment and later confesses to

the crime for which he was under suspicion, “the prosecution bears the burden of showing that

the confession was not obtained by exploitation of the illegal action.” Hart v. Commonwealth,

221 Va. 283, 288, 269 S.E.2d 806, 809 (1980); see Wong Sun v. United States, 371 U.S. 471,

488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1963). “Miranda warnings per se are insufficient

to break the causal chain between . . . police conduct [illegal under the Fourth Amendment] and a

[subsequent] confession.” Hart, 221 Va. at 288, 269 S.E.2d at 809. “Thus, when a confession

was made less than two hours after an illegal arrest, and there was no intervening event of

significance, the close causal connection between the illegal detention and the confession

rendered the confession inadmissible.” Id. However, where a defendant who has been

unlawfully arrested is released and returns voluntarily to make an incriminating statement, the

taint of the unlawful seizure has been dissipated, and the statement is admissible under the

Fourth Amendment. See Wong Sun, 371 U.S. at 491, 83 S. Ct. at 419, 9 L.Ed.2d at 457; see

Hart, 221 Va. at 289, 269 S.E.2d at 810.

       In determining whether evidence is derivative of the illegal act and, therefore, barred as

“fruit of the poisonous tree,” the question is “‘whether[,] granting establishment of the primary

illegality, the evidence to which the instant objection is made has been come at by exploitation of

that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’”

Wong Sun, 371 U.S. at 488, 83 S. Ct. at 417, 9 L. Ed. 2d at 455 (quoting John M. Maguire,

Evidence of Guilt 221 (1959)). “[E]vidence is not ‘fruit of the poisonous tree’ simply because

‘but for’ an unlawful search [or seizure] it would not have come to light.” Commonwealth v.

Ealy, 12 Va. App. 744, 755, 407 S.E.2d 681, 688 (1991) (quoting Segura v. United States, 468
                                                -4-
U.S. 796, 815, 104 S. Ct. 3380, 3391, 82 L. Ed. 2d 599, 615 (1984)). Evidence is obtained by

means “sufficiently distinguishable” to be admissible despite illegality if it is “evidence

attributed to an independent source” or “evidence where the connection has become so

attenuated as to dissipate the taint.” Warlick v. Commonwealth, 215 Va. 263, 266, 208 S.E.2d

746, 748 (1974).

               [These] limitations share the same rationale and are commonly
               applied together. For example, a search warrant . . . obtained
               subsequent to an unlawful search may be an independent source if
               such warrant . . . is not obtained by exploitation of the unlawful
               search or is so attenuated as to dissipate the taint of the unlawful
               search.

Ealy, 12 Va. App. at 755, 407 S.E.2d at 688. “There being no fixed formula [for making this

determination], courts consider the amount of time between the illegal action and the acquisition

of the evidence, the presence of intervening circumstances (like consent), and the purpose and

flagrancy of the official misconduct.” Kyer v. Commonwealth, 45 Va. App. 473, 483, 612

S.E.2d 213, 218-19 (2005) (en banc). Where the illegal activity of the police did not lead to

discovery of evidence a party seeks to exclude, the exclusion of that evidence does not meet the

purpose of the exclusionary rule, which is to deter future unlawful police conduct. See Johnson

v. Commonwealth, 21 Va. App. 172, 175, 462 S.E.2d 907, 909 (1995).

       Here, assuming without deciding that Detective Ray Pickell seized appellant in violation

of the Fourth Amendment by waving his badge in the direction of appellant’s slowly moving

vehicle, causing appellant to stop, the evidence nevertheless supported the trial court’s finding

that the seizure quickly ended. See United States v. Seidman, 156 F.3d 542, 550 (4th Cir. 1998)

(assuming without deciding government agent unlawfully entered defendant’s residence but

concluding constitutional violation was quickly “purged by the intervening independent acts of

[defendant’s] shutting the door behind [agent], motioning [agent] into his kitchen, and engaging

[agent] in conversation for a substantial period of time”), cited with approval in Kyer, 45
                                                -5-
Va. App. at 483-85, 612 S.E.2d at 218-19 (discussing Wong Sun “taint” analysis in context of

consent to search following unconstitutional entry of home); see also Burns v. Commonwealth,

261 Va. 307, 324 n.11, 541 S.E.2d 872, 884 n.11 (2001) (“Even if the roadblock violated Burns’

Fourth Amendment rights, we believe that any connection between the roadblock and the

statements and physical evidence obtained from Burns was entirely dissipated . . . when he

voluntarily spoke with [Officer] Gochenour at the site of the roadblock.”). The nature of the

intrusion, which occurred as appellant was driving “very slowly” through a cul-de-sac on a clear

summer afternoon, was minimal. Detective Pickell did not activate a siren or flashing lights,

with which his personal vehicle was not even equipped, and Pickell did not even get out of the

car. Instead, Pickell merely waved his badge out the window as appellant drove toward him in

order to get appellant’s attention, after which only Detective Brian Seabold, whom appellant had

met previously in the course of the investigation, got out of Pickell’s Dodge.

       As Detective Seabold, dressed in civilian attire, approached appellant’s vehicle in a

friendly manner without any additional display of authority, appellant exited his own vehicle,

and said “Hello, Mr. Seabold.” Detective Seabold addressed appellant by name, as well, and the

two shook hands. After the two had engaged in this “cordial” greeting, Detective Seabold

indicated an interest in talking to appellant at length. Appellant said “that would be fine” and

responded similarly when Detective Seabold asked whether appellant was willing to go to

Seabold’s office to talk. Appellant then accepted Detective Seabold’s offer of a ride to the police

station. After appellant moved his car to the side of the road and locked it, Seabold again asked

appellant “if he was sure he didn’t mind going down there and talking to us,” and “again,

[appellant] said he didn’t mind.” Appellant consented to Detective Seabold’s request to frisk

him for weapons before he got into the car with them. After Seabold completed the frisk,

appellant rode in the front seat with Detective Pickell, while Seabold rode in the back. Appellant

                                               -6-
was not handcuffed or restrained in any way, and appellant and the detectives engaged only in

“small talk” during the ride.

       Upon their arrival at the police station, appellant was given the option of entering the

front of the station by himself or riding to the back and entering with the officers from that

direction, and he opted to accompany them inside through the rear of the building. He later

opted to go to the rear of the building, where he knew he would have a police escort, in order to

smoke rather than to go out in front of the building by himself. Finally, the detectives closed the

interview room door only with appellant’s consent, expressly told appellant he was not under

arrest, and allowed him to take restroom and cigarette breaks as needed.

       These circumstances, viewed in their totality, support the trial court’s finding that

appellant’s confession was not the product of an illegal seizure. See Malbrough, 275 Va. at

171-72, 655 S.E.2d at 5 (discussing deference owed trial court’s findings regarding whether a

Fourth Amendment seizure occurred). Although not much time elapsed between the officers’

stopping of appellant’s vehicle and the subsequent contact, their stopping of the vehicle was

minimally intrusive, and the evidence supported a finding that the subsequent behavior of the

officers was wholly non-coercive and that appellant’s interaction with them was entirely

consensual. This same evidence supported the trial court’s implicit finding that appellant’s

confessing during that interview was sufficiently purged of any taint that might have flowed

from the original stop of his vehicle.

                                                 B.

                        CUSTODY UNDER THE FIFTH AMENDMENT

       Appellant contends that he was in custody and had not been advised of his rights pursuant

to Miranda when he made his first confession, rendering that confession inadmissible under the

Fifth Amendment. He contends further that, pursuant to the holding in Missouri v. Seibert, 542

                                                -7-
U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004), the confession he made after being advised

of his rights also was inadmissible because it was tainted by the first, unwarned confession. In

reviewing the ruling on the motion to suppress on Fifth Amendment grounds, just as with the

Fourth Amendment, we view the evidence in the light most favorable to the Commonwealth, the

party prevailing below. Dixon v. Commonwealth, 270 Va. 34, 37, 613 S.E.2d 398, 399 (2005).

Whether a person is “in custody” for purposes of one’s rights pursuant to Miranda is a mixed

question of law and fact. Thompson v. Keohane, 516 U.S. 99, 102, 116 S. Ct. 457, 460, 133

L. Ed. 2d 383, 388 (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, Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663, 134 L. Ed. 2d at 920.

Because the evidence supports a finding that appellant was not in custody for Fifth Amendment

purposes until after making his first confession, we hold no Fifth Amendment violation occurred

and that his second confession was admissible.

       The United States Supreme Court

               has long recognized that Miranda warnings are implicated only
               during a custodial interrogation. For that reason, “‘[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.’” Harris v. Commonwealth, 27
               Va. App. 554, 564, 500 S.E.2d 257, 261-62 (1998) (quoting
               [Oregon v.] Mathiason, 429 U.S. [492,] 495, 97 S. Ct. [711,] 714[,
               50 L. Ed. 2d 714, 719 (1977)]) (citation omitted). The Court’s
               decision in Seibert did not abrogate this long-standing principle.
               Thus, if a suspect gives an unwarned, voluntary confession before
               being taken into custody, a subsequent confession exacted after the
               suspect has been taken into custody and informed of his Miranda
               rights need not be suppressed.

Aldridge v. Commonwealth, 44 Va. App. 618, 641-42, 606 S.E.2d 539, 550-51 (2004) (first

emphasis added) (citations omitted).
                                                -8-
       “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.’” Wass v. Commonwealth, 5 Va. App. 27, 29-30, 359 S.E.2d 836, 837 (1987)

(quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706

(1966)). In determining whether a suspect is in custody when questioned, “[t]he totality of

circumstances must be considered . . . . 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.” Id. at 32, 359 S.E.2d at 839. “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.’” Harris, 27 Va. App. at 564, 500 S.E.2d

at 262 (quoting Stansbury v. California, 511 U.S. 318, 323, 114 S. Ct. 1526, 1529, 128 L. Ed. 2d

293, 298 (1994)).

       Appropriate factors for consideration include the nature of the surroundings in which the

questioning takes place, “the number of police officers present, the degree of physical restraint,

and the duration and character of the interrogation.” Wass, 5 Va. App. at 32-33, 359 S.E.2d at

839. Further,

                [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 . . . 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.”

Stansbury, 511 U.S. at 325, 114 S. Ct. at 1530, 128 L. Ed. 2d at 300 (quoting Berkemer v.

McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317, 335 (1984)) (other

citations omitted). Thus, where communicated to the suspect, the focus of the investigation on

that suspect, the existence of probable cause to arrest that suspect, and “‘“the extent to which [the

suspect] is confronted with evidence of guilt”’” are also relevant factors for consideration. Wass,
                                                 -9-
5 Va. App. at 33, 359 S.E.2d at 839 (quoting 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))).

       The fact that the questioning occurs in a police station or other “coercive environment”

does not automatically render the interrogation custodial and is simply another factor for

inclusion in the analysis of whether a reasonable person would have believed he was in custody.

See Mathiason, 429 U.S. at 495, 97 S. Ct. at 714, 50 L. Ed. 2d at 719. Applying this principle in

Mathiason, the United States Supreme Court held a station house interrogation was not custodial

where the accused, a parolee, came to the station voluntarily, despite the fact that he was told,

falsely, that his fingerprints had been found at the scene of a burglary. Id.

       The fact that an officer has “[i]nform[ed] a suspect that he is not in custody and is free to

leave” is relevant in the analysis but “does not necessarily mean that [the suspect] is not in

custody.” Wass, 5 Va. App. at 34, 359 S.E.2d at 840. A statement that a suspect is not in police

custody and is free to leave at any time “will not carry the day where it is, in effect, nullified by

other police conduct.” 2 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal

Procedure § 6.6(d), at 531 n.53 (2d ed. 1999).

       Here, the evidence, viewed in the light most favorable to the Commonwealth as recited in

Part I.A., shows that appellant voluntarily accompanied the officers to the police station, that the

detectives told appellant he was not under arrest and was free to leave, and that the behavior of

the officers supported their statements.2 Thus, the evidence supports a finding that appellant was

not in custody when he made his first confession.


       2
         Appellant does not contend that the officers made any other statements before he
confessed that would have caused a reasonable person in his position to believe he was in
custody. E.g. Wass, 5 Va. App. at 33, 359 S.E.2d at 839 (considering, inter alia, officers’
statements that the investigation was focused on the suspect, that probable cause existed to arrest
that suspect, and “‘“the extent to which [the suspect] is confronted with evidence of guilt”’”
(quoting Bautista, 684 F.2d at 1292 (quoting Booth, 669 F.2d at 1235))).

                                                 - 10 -
                                                   II.

       For these reasons, we hold the challenged evidence was obtained in a manner that did not

violate appellant’s Fourth or Fifth Amendment rights and that the trial court’s denial of

appellant’s motion to suppress was not error. Thus, we affirm appellant’s convictions, subject to

remand only for correction of a clerical error.3

                                                         Affirmed and remanded with instructions.




       3
           See supra footnote 1.
                                               - 11 -
