                                COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Benton and Petty
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                                              MEMORANDUM OPINION* BY
v.      Record No. 2783-06-4                              CHIEF JUDGE WALTER S. FELTON, JR.
                                                                    APRIL 10, 2007
CINDY CARRUITERO


                       FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                  Jane Marum Roush, Judge

                  Craig W. Stallard, Assistant Attorney General (Robert F. McDonnell,
                  Attorney General, on briefs), for appellant.

                  Malik N. Drake for appellee.


        Pursuant to Code § 19.2-3981, the Commonwealth appeals a pretrial ruling granting Cindy

Carruitero’s motion to suppress statements and evidence obtained during a search of her residence

pursuant to a search warrant based on her statements. The Commonwealth contends the trial court

erred in finding that Carruitero’s non-custodial request for an attorney prohibited law enforcement

officers from “speaking with her further” regarding her participation in a suspected gang-related

graffiti incident. For the reasons that follow, we reverse the trial court’s ruling and remand for

further proceedings consistent with this opinion.

                                          I. BACKGROUND

        When a pretrial motion to suppress is reviewed on appeal, the burden is on the

Commonwealth to show that the ruling, when the evidence is considered in the light most favorable


        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        1
         The Court will review the Commonwealth’s appeal of the pretrial suppression order
only insofar as it pertains to the felony indictment.
to the prevailing party below, here Carruitero, constituted reversible error. Ford v. Commonwealth,

28 Va. App. 249, 255, 503 S.E.2d 803, 805 (1998). Although “we are bound by the trial court’s

findings of historical fact unless ‘plainly wrong’ or without evidence to support them,” McGee v.

Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc), “we review de novo

the trial court’s application of defined legal standards . . . to the particular facts of the case.” Medley

v. Commonwealth, 44 Va. App. 19, 20, 602 S.E.2d 411, 415 (2004) (citing Ornelas v. United States,

517 U.S. 690, 699 (1996)).

        So viewed, the evidence shows that Detective Claudio Saa of the Herndon Police

Department telephoned Carruitero on November 25, 2005 regarding his investigation of an October

24, 2005 suspected gang-related graffiti incident. He had “developed” Carruitero as a suspect after

receiving a tip from a confidential informant. During the telephone call, he advised Carruitero that

she was a possible suspect in the case and that he wanted to conduct a voluntary interview with her

to “clarify her involvement.” Carruitero told him that she “had already gotten into some trouble and

that [she] didn’t want to get [her]self into more trouble by saying something and that [she] wanted

to talk to [her] lawyer.” Detective Saa requested the name and number of her lawyer so that he

“could contact and try to set something up.” The telephone conversation then ended.

        Approximately thirty minutes after the conclusion of the first telephone call, Carruitero

telephoned Detective Saa and provided him with the name and telephone number of her attorney.

She also asked him “what the investigation was about.” He told her that it involved the destruction

of property and 18th Street Gang graffiti, to which Carruitero responded, “I was there.” Detective

Saa then ended the call. The record contains no evidence that the detective contacted Carruitero’s

attorney. He telephoned Carruitero later that evening and informed her that he still wished to speak

with her regarding the graffiti incident. She agreed to talk with him the following day, if he would

come to her residence.

                                                   -2-
        Detective Saa arrived at Carruitero’s residence for the interview dressed in plain clothes.

Carruitero, an adult, was present with both of her parents. Prior to commencing the interview,

Detective Saa did not give Carruitero Miranda warnings, although he testified that he informed

Carruitero that she was not obligated to speak with him and could stop the interview at any time.

Carruitero’s mother testified that Carruitero told the detective she wanted to speak with her attorney

“before saying anything,” and the detective responded by stating, “don’t worry because nothing that

you will say is going to be taken into consideration. This is just a friendly investigation that we are

doing.” However, when asked if she had “ever indicate[d] to [Detective Saa] that [she] wanted an

attorney present[,]” Carruitero stated, “I said that to him on the phone, not when he was there

because when he talked to me on the phone, he made it seem like he just wanted to come and talk

not that, like, everything I say is going to come against you in court.” Carruitero also testified she

did not recall the detective saying she could stop the interview at any time.

        During the interview, Carruitero made statements incriminating herself in the graffiti

incident. Detective Saa told her that he “would be pressing charges, but [that] [he] would notify the

Assistant Commonwealth’s Attorney who would be on the case of her cooperation.” He did not

arrest her at that time. Some four months later on March 30, 2006, Detective Saa prepared an

affidavit in support of a search warrant for Carruitero’s residence. In the affidavit, he stated the

incriminating statements Carruitero made during the interview were the basis for the search warrant.

During the execution of the search warrant, unspecified inculpatory evidence was seized.

        Carruitero was indicted for knowingly and willfully participating in the destruction of

private property, committed for the benefit of, or at the direction of, or in association with a criminal

street gang in violation of Code § 18.2-46.2, a felony, and unlawfully destroying or damaging

private property valued less than $1,000 in violation of Code § 18.2-137, a misdemeanor.




                                                  -3-
           On October 13, 2006, Carruitero moved to suppress her statements and the fruits of the

search warrant, contending that her statements “were obtained in violation of the Fifth and

Fourteenth Amendments of the United States and Article I of the Constitution of Virginia” and that

the “[e]vidence resulting from [the] statements was obtained in violation of [her] right against

self-incrimination.” In response, the Commonwealth cited Miranda v. Arizona, 384 U.S. 436

(1966), and argued the statements were admissible because Carruitero was not in custody when she

spoke with Detective Saa. At the suppression hearing, the Commonwealth argued there were “two

particular issues here, one being the question of the voluntariness of [Carruitero’s] statements[,]”

and the other being that “[i]t doesn’t appear . . . this is a situation where Miranda warning would

apply . . . [because] [s]he wasn’t in custody and [the detective] advised her that she wasn’t under

arrest.”

           Carruitero’s attorney asserted that, “even if Your Honor is inclined to think . . . Miranda was

not appropriate, those statements were obtained in bad faith.” When he began to “move to the next

point,” the trial court interrupted, granting Carruitero’s motion to suppress. Specifically, the trial

court ruled that Carruitero invoked her Fifth Amendment right to counsel during the initial

telephone conversation with Detective Saa when she stated she wanted to speak with her attorney.

It found that her phone call providing her attorney’s name and number did not constitute voluntary

reinitiating contact with the detective and that the evidence obtained during the execution of the

search warrant was suppressed under the “fruit of the poisonous tree” doctrine. Absent from the

trial court’s ruling was a finding that Carruitero was subjected to custodial interrogation when she

stated her desire to consult with her attorney. The trial court did not address the voluntariness issue

in its ruling.




                                                    -4-
                                          II. ANALYSIS

       The Commonwealth’s sole contention on appeal is that “the trial court erred in finding that

Carruitero invoked her [Fifth Amendment] right to counsel and the police were then prohibited from

further contact with her.”

       “The right of a criminal suspect to have an attorney present during custodial interrogation

was first articulated by the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 469-73 (1966).”

Commonwealth v. Hilliard, 270 Va. 42, 49, 613 S.E.2d 579, 584 (2005). The Court

                held that, before an individual may be questioned by police, he
                must be warned of his right to remain silent and his right to [have]
                an attorney [present] only when that “individual is taken into
                custody or otherwise deprived of his freedom by the authorities in
                any significant way and is subjected to questioning.”

Bailey v. Commonwealth, 259 Va. 723, 745, 529 S.E.2d 570, 583 (2000) (quoting Miranda, 384

U.S. at 478).

       In Edwards v. Arizona, 451 U.S. 477 (1981), the Court, in a post-arrest setting,

“‘established a second layer of prophylaxis for the Miranda right to counsel . . . [,]’”

Commonwealth v. Gregory, 263 Va. 134, 146, 557 S.E.2d 715, 722 (2002) (quoting McNeil v.

Wisconsin, 501 U.S. 171, 176 (1991)), holding that, “an accused, . . . having expressed his desire

to deal with the police only through counsel, is not subject to further interrogation by the

authorities until counsel has been made available to him, unless the accused himself initiates

further communication, exchanges, or conversations with the police.” Edwards, 451 U.S. at

484-85.

       The protections afforded by Miranda, Edwards, and their progeny “appl[y] only when a

suspect is subjected to custodial interrogation.” Webber v. Commonwealth, 26 Va. App. 549,

557, 496 S.E.2d 83, 86 (1998) (citing Davis v. Allsbrooks, 778 F.2d 168, 170-71 (4th Cir.

1985)). See also Tipton v. Commonwealth, 18 Va. App. 832, 835, 447 S.E.2d 539, 540 (1994)

                                                -5-
(holding that “[t]he Edwards rule has not been expanded to include non-custodial demands for an

attorney . . .”). The Commonwealth contends Detective Saa’s initial telephone conversation with

Carruitero, during which she stated she wanted to speak with her attorney, was non-custodial and

therefore did not trigger the prophylactic protections of Miranda and Edwards.

       Whether a suspect is “in custody” for purposes of Miranda and Edwards “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.’”

Aldridge v. Commonwealth, 44 Va. App. 618, 642, 606 S.E.2d 539, 551 (2004) (quoting Harris

v. Commonwealth, 27 Va. App. 554, 564, 500 S.E.2d 257, 262 (1998)). See also California v.

Beheler, 463 U.S. 1121, 1125 (1983). “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.’” Wass v. Commonwealth, 5 Va. App. 27, 32, 359 S.E.2d 836, 839

(1987) (quoting Berkemer v. McCarty, 468 U.S. 420, 442 (1984)).

       Courts must also consider “‘a host of factors,’” id. (quoting United States v. Streijel, 781

F.2d 953, 961 (1st Cir. 1986)), when determining whether a suspect was “in custody” for

Miranda and Edwards purposes. These factors include:

               (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.

Aldridge, 44 Va. App. at 642, 606 S.E.2d at 551 (citations omitted). “However, no single factor

alone may necessarily establish custody . . . and not all factors may be relevant in a given case.”

Wass, 5 Va. App. at 33, 359 S.E.2d at 839.

       The record reflects Detective Saa initially contacted Carruitero for a “voluntary

interview” by telephone in order to “clarify her involvement” in the graffiti incident. She was
                                                -6-
not restrained in any manner, and could have easily ended the conversation at any time by simply

disconnecting the call. The duration of the telephone call was brief. Although Detective Saa did

advise Carruitero that she was a suspect in the case, “‘[e]ven 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.’”

Aldridge, 44 Va. App. at 646, 606 S.E.2d at 553 (quoting Stansbury v. California, 511 U.S. 318,

324-25 (1994)). See also Commonwealth v. Thornton, 24 Va. App. 478, 488, 483 S.E.2d 487,

492 (1997) (“[The application of Miranda [is not] triggered ‘simply because the . . . questioned

person is one whom the police suspect.’” (quoting Pruett v. Commonwealth, 232 Va. 266, 271,

351 S.E.2d 1, 4 (1986))). Considering these circumstances, a reasonable person would not have

believed that Carruitero’s “freedom of movement” was restrained [to] the degree associated with

formal arrest. Aldridge, 44 Va. App. at 642, 606 S.E.2d at 551. Accordingly, Carruitero was not

in custody during her initial telephone conversation with Detective Saa, and, therefore, the

prophylactic protections of Miranda and Edwards were not triggered.

       From the record presented, we conclude that the trial court erred in determining that

Carruitero’s request to speak with her attorney invoked her Fifth Amendment right to counsel

and that Detective Saa was prohibited from further contact with her. Likewise, we conclude that

the subsequent interview at Carruitero’s residence was also non-custodial in nature.

Consequently, the inculpatory statements Carruitero made during the interview are not

inadmissible as the result of a Miranda or Edwards violation.

       Carruitero argues on appeal that we should affirm the trial court’s ruling because her

inculpatory statements to Detective Saa were involuntary. As the trial court failed to address the

issue of whether Carruitero’s statements were voluntarily made, “there is no ruling for us to

review on appeal.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 489 (1998).

                                                 -7-
Accordingly, we will not consider the issue. We therefore reverse the trial court’s judgment and

remand for further proceedings consistent with this opinion.

                                                                    Reversed and remanded.




                                               -8-
