                      COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia


BRANDON KEITH JONES
                                         MEMORANDUM OPINION * BY
v.   Record No. 1536-01-1                 JUDGE LARRY G. ELDER
                                             OCTOBER 1, 2002
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                     H. Thomas Padrick, Judge

           Andrew G. Wiggin (Donald E. Lee, Jr. &
           Associates, on briefs), for appellant.

           H. Elizabeth Shaffer, Assistant Attorney
           General (Jerry W. Kilgore, Attorney General,
           on brief), for appellee.


     Brandon Keith Jones (appellant) appeals from his bench

trial convictions for murder, attempted robbery, conspiracy, and

use of a firearm in the commission of murder or attempted

robbery.   On appeal, he contends the trial court's refusal to

suppress his statements to police was erroneous because he made

the statements during a custodial interrogation conducted before

he was informed of his Miranda rights.   We hold, under the

totality of the circumstances, that appellant was not in custody

when he admitted, prior to being Mirandized, that he was present

at the scene when the charged crimes were committed and fled


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
with the perpetrator immediately thereafter.   Therefore, we

affirm.

     On appeal of a denial of a motion to suppress, we view the

evidence in the light most favorable to the Commonwealth,

granting to the evidence all reasonable inferences fairly

deducible therefrom.   Commonwealth v. Grimstead, 12 Va. App.

1066, 1067, 407 S.E.2d 47, 48 (1991).

     Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16

L. Ed. 2d 694 (1966), holds that "statements stemming from

custodial interrogation are inadmissible unless certain

procedural safeguards effective to secure the privilege against

self-incrimination are provided.    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, 384 U.S. at 444, 86 S. Ct. at 1612).    "[T]he

issue whether a suspect is 'in custody,' and therefore entitled

to Miranda warnings, presents 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 (1995).    "[W]e 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), but we

review de novo the trial court's application of defined legal

                                 - 2 -
standards to the particular facts of the case, Ornelas v. United

States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d

911 (1996).

     In determining whether a suspect is in custody when

questioned, "[t]he totality of circumstances must be

considered."    Wass, 5 Va. App. at 32, 359 S.E.2d at 839.    "[T]he

question is not whether a reasonable person would believe he was

not free to leave, but rather whether a person would believe he

was in police custody of the degree associated with formal

arrest."   2 Wayne R. LaFave, Jerold H. Israel & Nancy J. King,

Criminal Procedure § 6.6(c), at 526 (2d ed. 1999).     "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 v. Commonwealth, 27 Va. App. 554, 564, 500 S.E.2d 257,

262 (1998) (quoting Stansbury v. California, 511 U.S. 318, 323,

114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293 (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

                                - 3 -
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 (quoting Berkemer v. McCarty, 468 U.S. 420, 440,

104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317 (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, 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 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

(holding such a statement had little impact where presence of

twelve armed officers to execute search warrant, officers'

manner of arrival, methods used to secure house, and threat to

kill suspect's dog, combined to require finding that reasonable

man in suspect's position would have felt he was not free to

leave).   Conversely, "[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

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are free to come and go until the police decide to make an

arrest."   Stansbury, 511 U.S. at 325, 114 S. Ct. at 1530.

      The fact that the questioning occurs in a police station or

other "coercive environment" does not automatically render the

interrogation custodial and is simply a factor for inclusion in

the analysis of whether a reasonable person would have believed

he was in custody.     See Oregon v. Mathiason, 429 U.S. 492, 495,

97 S. Ct. 711, 714, 50 L. Ed. 2d 714 (1977).    Applying this

principle in Oregon v. Mathiason, the 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 Court reasoned:

           Any interview by one suspected of a crime by
           a police officer will have coercive aspects
           to it, simply by virtue of the fact that the
           police officer is part of a law enforcement
           system which may ultimately cause the
           suspect to be charged with a crime. But
           police officers are not required to
           administer Miranda warnings to everyone whom
           they question. Nor is the requirement of
           warnings to be imposed simply because the
           questioning takes place in the station
           house, or because the questioned person is
           one whom the police suspect. Miranda
           warnings are required only where there has
           been such a restriction on a person's
           freedom as to render him "in custody."

Id.

      In a case similar to appellant's, the Ninth Circuit Court

of Appeals concluded a confession given during a station house


                                 - 5 -
interrogation also was not custodial.   Thompson v. Keohane, 145

F.3d 1341, 1341 (9th Cir. 1998).   Although the Ninth Circuit's

affirmance in Thompson was "without published opinion," id., the

United States Supreme Court detailed the relevant factual

findings and procedural history in an earlier published opinion

in which it determined only the proper standard for appellate

review and remanded to the Court of Appeals for application of

that standard.   Thompson, 516 U.S. at 116, 116 S. Ct. at 467.

     In Thompson, the defendant drove himself to the station

house at the request of police, "purportedly" to identify the

belongings of his former wife, who had been stabbed.   516 U.S.

at 102-03, 116 S. Ct. at 460-61.   After Thompson identified the

items, he remained at headquarters for two more hours while two

unarmed troopers "continuously questioned him in a small

interview room and tape-recorded the exchange. . . .   Although

[the troopers] constantly assured Thompson he was free to leave,

they also told him repeatedly that they knew he had killed his

former wife" and said that searches of his home and his truck

were then being conducted pursuant to a warrant.   Id. at 103,

116 S. Ct. at 461.   The trial court ruled that Thompson was not

"in custody" for Miranda purposes, id. at 105, 116 S. Ct. at

461-62, and the Ninth Circuit, on remand, presumably applying an

independent standard of review as directed by the Supreme Court,

see id. at 116, 116 S Ct. at 467, affirmed without published

opinion, see 145 F.3d 1341.

                               - 6 -
     We hold the circumstances in appellant's case were less

likely to lead a reasonable person to conclude he was in custody

than were the circumstances in Thompson.      In appellant's case,

although appellant rode to the police station with Detective

Hoffman rather than driving his own vehicle as Thompson did,

Hoffman, unlike the troopers in Thompson, did not use a ruse to

get appellant to the police station and told appellant from the

outset of their encounter that his purpose in asking appellant

to accompany him was so that Hoffman could talk to him about an

incident that occurred in Virginia Beach. 1    Like in Thompson,

Hoffman told appellant repeatedly that he was not under arrest

and was free to leave at any time, both before they arrived in

the interview room and during the interview itself.      See also

State v. Northrop, 568 A.2d 439, 444 n.7 (Conn. 1990) (in

Miranda "in custody" determination, minimizing impact of fact

that defendant had no automobile at police station and "was at

the mercy of the police for transportation," given absence of

evidence that police "would not have heeded the defendant's

request to depart at any time and drive him . . . home").     The

entire process, from when Detective Hoffman first telephoned and

     1
       The use of a ruse was relevant only to the extent that
Thompson may have become aware of it when the troopers began to
question him about his former wife's murder and then only
insofar as it would have impacted a reasonable person's
perception of whether he was in custody. The ruse itself, just
like the ruse Detective Hoffman employed in telling appellant
that his friend admitted he and appellant witnessed the


                              - 7 -
met with appellant at his girlfriend's house until appellant was

read his Miranda rights in the interview room at the police

station, lasted only about two hours.   See Thompson, 516 U.S. at

103, 116 S. Ct. at 461 (involving two-hour interview); Davis v.

Allsbrooks, 778 F.2d 168, 171 (4th Cir. 1985) (holding two-hour

interview was not excessive because it was "not a marathon

session designed to force a confession").    Appellant agreed to

Detective Hoffman's non-threatening requests for appellant to

accompany him at each stage during the process, and appellant

was not searched or restrained at any time.   Detective Hoffman

reminded appellant on multiple occasions during the questioning

that appellant was not in custody and had come to the police

station "on [his] own."

     Unlike in Thompson, in which the officers told Thompson

repeatedly that they knew he had killed his former wife,

Detective Hoffman said that appellant probably had been "in the

wrong place at the wrong time," that Hoffman was "not trying to

pin something on [appellant]," and that perhaps appellant's

fingerprint was on the victim's telephone because appellant had

tried to call for help after the shooting.    Thus, unlike in

Thompson, Hoffman did not convey to appellant that Hoffman

believed him to be a suspect in the case.    Appellant's knowledge

of his actual participation in the events was irrelevant to the


shooting, was irrelevant to the custody determination.     See
Mathiason, 429 U.S. at 495-96, 97 S. Ct. at 714.

                              - 8 -
determination, for "[t]he 'reasonable person' test presupposes

an innocent person."     Florida v. Bostick, 501 U.S. 429, 438, 111

S. Ct. 2382, 2388, 115 L. Ed. 2d 389 (1991) (applying principle

in evaluating whether suspect was illegally seized when he

consented to search).    As soon as appellant admitted that one of

his companions was the shooter, he was given his Miranda rights.

     Although the Supreme Court in Mathiason, 429 U.S. at 495,

97 S. Ct. at 714, and the trial court in Thompson, 516 U.S. at

104-05, 116 S. Ct. at 461, noted that the accused in each of

those cases was allowed to "leave the police station without

hindrance" at the completion of the interview in which he

confessed, we hold that this fact is without legal significance.

Manifestly, the period of time relevant to determining whether

an individual is in custody is the period before the individual

confesses involvement.    As other courts have recognized, whether

a suspect is permitted to leave after confessing to a particular

crime has no bearing on whether his pre-confession presence was

custodial.   See, e.g., Barfield v. Alabama, 552 F.2d 1114, 1118

(5th Cir. 1977) (holding fact that defendant in Mathiason was

allowed to leave police station after confessing was not a basis

for distinguishing it from Barfield's case and that

investigating officer "would have been derelict in his duty had

he allowed her to go free"); Roman v. State, 475 So. 2d 1228,

1231-32 (Fla. 1985) (holding that "[c]ertainly the noncustodial

atmosphere leading up to a confession and probable cause would

                                 - 9 -
thereby be expected to be converted to a custodial one" and that

the "occasions would be rare when a suspect would confess to

committing a murder and then be allowed to leave").

     We hold the totality of the circumstances supports the

trial court's ruling that a reasonable person in appellant's

position would not have believed his "freedom of movement [had

been] curtailed to a degree associated with formal arrest" when

he admitted that he was present at the scene of the shooting and

fled with the perpetrator.   Berkemer, 468 U.S. at 442, 104

S. Ct. at 3151.   Thus, the trial court's refusal to suppress the

statements appellant made before and after being read his

Miranda rights was not error.

     For these reasons, we affirm appellant's convictions.

                                                         Affirmed.




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