                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Norfolk, Virginia


SANTAREJAI ANTARINN BROWN
                                         MEMORANDUM OPINION * BY
v.          Record No. 1893-96-1        JUDGE SAM W. COLEMAN III
                                             JULY 22, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                       Jerome B. Friedman, Judge
            Andrew G. Wiggin (Asha S. Pandya, Assistant
            Public Defender; The Law Office of Donald E.
            Lee, Jr. and Associates, on briefs), for
            appellant.

            Ruth Ann Morken, Assistant Attorney General
            (James S. Gilmore, III, Attorney General, on
            brief), for appellee.



     In this criminal appeal, we determine whether the

defendant's Fourth Amendment right to be free from unreasonable

seizures and his Fifth Amendment right to be given Miranda

warnings were violated.    In the trial court, the defendant

initially moved to suppress the evidence on the grounds that he

was seized without probable cause or reasonable suspicion and

that he was interrogated by the police without being informed of

his Miranda rights.    The trial judge denied the defendant's

motion and, after entering conditional guilty pleas, the

defendant was convicted for possession of cocaine with intent to

distribute, conspiracy to distribute cocaine, and possession of a

     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
firearm while in possession of cocaine.     Finding no error, we

affirm the convictions.

     On April 12, 1995, a SWAT team from the Virginia Beach

Police Department was executing a search warrant for cocaine and

weapons at 618 Fox Creek Court in Virginia Beach.     Officer W. E.

Hodges, Jr. was assigned by the SWAT team to "cover the outer

perimeter" of the house.   Around 10:30 a.m., he and Officer Spain

were stationed in their vehicle approximately one half block from

the house, but could not see the house from their position.
     Officer Hodges was in radio contact with the officers who

were executing the search warrant and was informed that "there

was a possibility that some people" had run out the back of the

house and were at large in the neighborhood, but was not given a

description of the people. 1   After receiving this report,

Officers Hodges and Spain rode around the neighborhood "to see if

[they] could see anything that was suspicious."     Approximately

five to ten minutes later, they saw the defendant walking in the

opposite direction from the house.      He was "moving his head

looking around [from] side to side," was wearing socks but no

shoes and had one hand under his shirt "like [it] was near his

waistband."
     1
       The defendant contends that no evidence in the record
established that Officer Hodges received the information
concerning suspects fleeing the house from the officers
conducting the search. This argument is without merit. The
record reflects that Officer Hodges testified that he was in
radio contact with one of the narcotics detectives executing the
search warrant and was informed of the possibility that people
had run out the back of the house.



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     Officer Hodges exited the police vehicle and approached

Brown cautiously, identifying himself as a police officer and

telling Brown several times to put his hands where Officer Hodges

could see them.   Officer Hodges conducted a brief pat down and

asked Brown "where he was coming from."   Brown told him that he

was coming from his house and that he had left because "somebody

was breaking into" the house.   Officer Hodges then told Brown

that he was being detained until the officer in charge of the

search could come ask him some questions.   Officer Hodges asked

Brown if there was anything dangerous in the house.   Brown told

him that there was a .22 caliber gun in an upstairs closet.

Although Hodges could not remember whether they ever specifically

mentioned 618 Fox Creek, Hodges understood that to be the house

they were discussing.
     Approximately fifteen minutes after Officer Hodges detained

the defendant, Detective Hayden, the officer in charge of

executing the search warrant, arrived and asked Brown how many

people had been in the house and who they were.   Detective Hayden

then asked Brown to return to the house with him and Brown

voluntarily agreed.   On the way to the house, Detective Hayden

advised Brown of his Miranda rights and asked him again why he

had left the house and to identify anyone who had been in the

house when the police originally arrived to execute the search

warrant.




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                             THE SEIZURE

     On appeal, determinations of reasonable suspicion and

probable cause require de novo review.     Ornelas v. United States,

116 S. Ct. 1657, 1663 (1996).   However, a trial court's findings

of historical fact are reviewed only for credible evidence to

support them and "due weight" must be given to "inferences drawn

from those facts by resident judges and local law enforcement

officers," and to "a trial court's finding that [an] officer was

credible and [that his or her] inference was reasonable."    Id.

     If a police officer has reasonable, articulable suspicion

that a person is engaging in, or is about to engage in, criminal

activity, he may detain the person to conduct a brief

investigation without violating the Fourth Amendment's protection

against unreasonable searches and seizures.     See Terry v. Ohio,

392 U.S. 1, 27 (1968).    The reason for stopping an individual

need not rise to the level of probable cause, but must be more

than an "inchoate and unparticularized suspicion or 'hunch.'"
Id. at 27.   When determining whether an officer's suspicion is

reasonable, we look to the totality of the circumstances, see

United States v. Sokolow, 490 U.S. 1, 8 (1989), and view the

facts "objectively through the eyes of a reasonable police

officer with the knowledge, training and experience of the

investigating officer."    Murphy v. Commonwealth, 9 Va. App. 139,

144, 384 S.E.2d 125, 128 (1989).

     In this case, we hold that Officer Hodges' investigatory



                                - 4 -
detention of Brown was justifiable and based upon reasonable,

articulable suspicion.    Officer Hodges knew that there was a

possibility that people had run from the house.   Because "a

warrant to search . . . carries with it the limited authority to

detain the occupants of the premises while a proper search is

conducted," Michigan v. Summers, 452 U.S. 692, 705 (1981), the

police were justified in detaining Brown to determine whether he

had fled the house and to determine who else may have been in the

house at the time.   See Williams v. Commonwealth, 4 Va. App. 53,

59, 354 S.E.2d 79, 85 (1987) (holding that a valid Terry stop

occurred when officers stopped a suspect who had just left a

house the police were searching pursuant to a warrant).   Officer

Hodges saw Brown walking down the street in the neighborhood

within minutes of hearing that persons may have fled the home.

Brown was wearing socks, but no shoes.   He was looking from side

to side and had his hand in his waistband.   Based on the totality

of the circumstances, Officer Hodges had reasonable suspicion to

detain Brown in order to briefly investigate whether he had or

was committing a crime.
                          MIRANDA WARNINGS

     The necessity of giving Miranda warnings arises only when an

individual is questioned by the police while the person is in

custody.   Smith v. Commonwealth, 219 Va. 455, 470, 248 S.E.2d

135, 144 (1978), cert. denied, 441 U.S. 967 (1979).    When

determining whether a suspect is in custody at the time of police



                                - 5 -
interrogation, we look to the totality of the circumstances;

however, 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 (1983) (quoting Oregon v. Mathiason, 429 U.S.

492, 495 (1977)).   We view the circumstances as would the

reasonable man in the suspect's position.      Berkemer v. McCarty,

468 U.S. 420, 442 (1984).   In so doing, we consider many

factors, including: 1) the surroundings; 2) the number of

officers present; 3) the degree of physical restraint; 4) the

duration and character of the interrogation; 5) the existence of

probable cause to arrest; 6) the time when the suspect becomes

the focus of the investigation; 7) the language used by the

officer to summons the individual; and 8) the extent to which the

suspect is confronted with evidence of guilt.      Wass v.

Commonwealth, 5 Va. App. 27, 33, 359 S.E.2d 836, 839 (1987).

     Here, the circumstances surrounding the seizure and

questioning of Brown do not rise to the level of a custodial

interrogation.   During the initial stop by Officer Hodges, the

officer was merely conducting an investigative detention, which

does not, standing alone, place a suspect in custody for Miranda
purposes.   See Commonwealth v. Milner, 13 Va. App. 556, 558, 413

S.E.2d 352, 353 (1992).   There was nothing about the encounter

that was inherently coercive or that would lead a reasonable

person to believe he was in custody.




                               - 6 -
     When Detective Hayden arrived, he asked Brown to accompany

him to the house, which Brown did voluntarily.   At no time did

the police officers' actions intimate to the defendant that he

was in custody or in a situation equivalent to a "formal arrest."

Thus, Miranda warnings were not necessary and Brown's statements

were not made in violation of his rights.

     For the foregoing reasons, we affirm the convictions.

                                                         Affirmed.




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