                       COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Kelsey and Senior Judge Willis
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                             MEMORANDUM OPINION * BY
v.   Record No. 2204-02-3                 JUDGE JERE M. H. WILLIS, JR.
                                                FEBRUARY 4, 2003
MICHAEL JAMES RIGNEY


          FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                B. A. Davis, III, Judge Designate

          Eugene Murphy, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellant.

          Henry G. Crider for appellee.


     On appeal from the trial court's suppression of Michael James

Rigney's statements, the Commonwealth argues that Rigney was not

in custody when interrogated and, thus, the officer was not

required to advise him of his rights pursuant to Miranda v.

Arizona, 384 U.S. 436 (1966).   We reverse the trial court's

suppression of Rigney's statements and remand the case for trial,

if the Commonwealth be so advised.

                             BACKGROUND

     Deputy Sheriff H. Gatewood received a Crimestoppers tip

that Rigney, a convicted felon, possessed firearms in his home.

Having confirmed that Rigney had been convicted of a felony,


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Gatewood went to Rigney's home wearing his uniform and holstered

weapon.   Rigney's wife invited Gatewood in.   Upon entering the

home, Gatewood saw a gun cabinet containing firearms.     Rigney's

wife awakened Rigney and told him the deputy wanted to speak to

him.   Gatewood told Rigney of the complaint and stated he needed

to speak with him about it and would record the conversation.

Rigney agreed, and they sat at Rigney's kitchen table.    Rigney

admitted being a convicted felon and possessing one firearm in

the gun cabinet and another that his brother had in his truck.

Rigney acknowledged that he was not allowed to possess firearms.

Gatewood told Rigney he would not arrest him then, but that an

indictment would likely follow.   After seizing the weapons,

Gatewood left the home.

                              ANALYSIS

           When a motion to suppress is reviewed on
           appeal, the burden is on the appellant to
           show that the ruling, when the evidence is
           considered in the light most favorable to
           the [prevailing party below], constituted
           reversible error. We review the trial
           court's findings of historical fact only for
           "clear error," but we review de novo the
           trial court's application of defined legal
           standards, such as "reasonable suspicion"
           and "custodial interrogation," to the
           particular facts of a case.

Ford v. Commonwealth, 28 Va. App. 249, 255, 503 S.E.2d 803, 805

(1998) (citations omitted).   "'[P]olice officers are not

required to administer Miranda warnings to everyone whom they




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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) (citation omitted).

          Custodial interrogation is defined as
          "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." The
          totality of the circumstances viewed from
          the viewpoint of a reasonable person in the
          suspect's position must be considered when
          determining whether the suspect is in
          custody when questioned. "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."

Taylor v. Commonwealth, 10 Va. App. 260, 267, 391 S.E.2d 592,

596 (1990) (citations omitted).

      Gatewood's assertion that he suspected Rigney was a

convicted felon in possession of firearms did not transform the

conversation into a custodial interrogation.    "The Miranda

warnings are not required merely because . . . the investigation

has centered on the person being questioned."    Kauffmann v.

Commonwealth, 8 Va. App. 400, 404-05, 383 S.E.2d 279, 281 (1989)

(citing Oregon v. Mathiason, 429 U.S. 492, 495 (1977)).

          Among the circumstances to be considered
          when making the determination of whether a
          suspect was "in custody" are (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



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             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. No single factor is dispositive
             of the issue.

Harris, 27 Va. App. at 565, 500 S.E.2d at 262 (citations

omitted).

        Gatewood was invited into Rigney's home by Rigney's wife.

He announced his purpose and sat at the kitchen table with

Rigney to discuss his investigation.     Although Gatewood was

armed, he never drew his weapon or otherwise threatened Rigney.

He told Rigney he was not going to arrest him and, despite

Rigney's confession and the presence of the firearms, left the

home without arresting him.    Rigney's freedom of movement was

not curtailed to any degree associated with arrest.    Under these

circumstances, a reasonable person would not have felt compelled

to speak with the officer or unable to ask him to leave the

home.

        Rigney's reliance on Wass v. Commonwealth, 5 Va. App. 27,

359 S.E.2d 836 (1987), is misplaced.     In Wass, the law

enforcement presence, in number, character and action, resembled

a military operation and was so overwhelming that no reasonable

person would have felt free to resist any demand made on him.

Id. at 34, 359 S.E.2d at 840.    Here, Rigney met one deputy




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sheriff, in his own home, seated at his own kitchen table, a

familiar and neutral place.   The encounter consisted of a calm

discussion about the allegation, with no show of force or any

physical restraint.    Thus, the encounter was consensual, not

custodial, and Miranda warnings were not required.

     The trial court erred by granting the motion to suppress

Rigney's statements.   Accordingly, we reverse the judgment of

the trial court and remand the case for further proceedings,

should the Commonwealth be so advised.

                                          Reversed and remanded.




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