                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata, and Overton
Argued at Richmond, Virginia


NEAL NATHANIEL CARROLL
                                           MEMORANDUM OPINION * BY
v.        Record No. 2353-95-2            JUDGE NELSON T. OVERTON
                                             FEBRUARY 25, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Robert W. Duling, Judge
          Robert N. Johnson (Anne M. Johnson; Derek E.
          Leake; Robert N. and Anne M. Johnson, Inc.,
          on briefs), for appellant.

          Eugene Murphy, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     Neal Nathaniel Carroll appeals his conviction for possession

of cocaine with the intent to distribute in violation of Code

§ 18.2-248.   He contends that the trial court erroneously

admitted (1) the cocaine found in his jacket and (2) statements

he made during the search.    We affirm the decision of the lower

court as to the first issue, but reverse as to the second and

remand for a new trial.

     On January 31, 1995, the Drug and Firearm Strike Force of

the Richmond Police Department executed a search warrant for

cocaine and related items at the residence of Cecil James.    The

defendant, Carroll, did not reside there but was present on that

     *
      Pursuant to Code § 17-116.010 this opinion is not

designated for publication.
day.   After a forced entry into the rear door, the police secured

the apartment, which included handcuffing Carroll on the floor.

       A leather jacket was on a chair near Carroll.   One police

officer asked Carroll if it was his; Carroll answered that it was

not.   The officer searched the pockets, finding store receipts

and a bag of cocaine.   The officer asked Carroll if the jacket

contained anything with Carroll's name on it.    Carroll replied

affirmatively, and the officer read Carroll his Miranda rights.

He again asked Carroll if the jacket was his, and this time

Carroll admitted that it was.
       At trial, the prosecutor argued in his closing statement:
            But, if you have sixty-six grams of cocaine
            in that coat, your first reaction when
            someone says, hey, is this your coat? No,
            that is not my coat. Especially if it is an
            officer, a police officer. First thing, no,
            that is not my coat. That is why when the
            officer said, "Is it your coat?" He said,
            "No, it is not my coat." Why would he say
            that? There is no reason except for the fact
            that he knew there was sixty-six grams of
            cocaine in the pocket, stuffed in the pocket.
             That is the only reason.


       Carroll contends on appeal, as he did before and during the

trial, that the physical evidence of the cocaine should have been

suppressed, as should the statements he made before he was read

his Miranda rights.
       The cocaine itself was admissible.   The police were

searching the apartment for narcotics pursuant to a valid search

warrant.   They would have searched the jacket because it was

clearly a place where narcotics may have been hidden.    Even if



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the unlawful questioning of Carroll in fact led to the search of

the jacket, evidence tainted by an unlawful seizure is admissible

when the Commonwealth shows "'(1) a reasonable probability that

the evidence in question would have been discovered by lawful

means but for the police misconduct, (2) that the leads making

the discovery inevitable were possessed by the police at the time

of the misconduct, and (3) that the police also prior to the

misconduct were actively pursuing the alternative line of

investigation.'"     Walls v. Commonwealth, 2 Va. App. 639, 656, 347

S.E.2d 175, 185 (1986) (quoting United Stated v. Cherry, 759 F.2d

1196, 1204 (5th Cir. 1985)).    Consequently, the evidence shows

that the cocaine would have been discovered by other lawful

means, and is not the fruit of Carroll's statements.

     The statements, however, were made by Carroll in response to

police questions before he was read his rights and are not

admissible.    Carroll was in custody at the time that he was

questioned.    He was surrounded by several armed police officers

who had forced their way into the apartment; he was ordered to

lie down; he was handcuffed; and then he was questioned.    A

police officer testified that he would not have let Carroll leave

if he had asked and admitted that Carroll was suspected of drug

activity.     See Wass v. Commonwealth, 5 Va. App. 27, 359 S.E.2d

836 (1987).    "A reasonable man confronted with [an] armed display

of manpower at his house, even though earlier told he was not

under arrest and was free to leave, could only conclude that he




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was in fact not free to leave and was expected to cooperate.    The

atmosphere was exactly the type of police dominated environment

described in Miranda."   Id. at 34, 359 S.E.2d at 840.

     Carroll then was directly questioned by a police officer,

which constituted an interrogation or its functional equivalent.

The police officer's questions were obviously designed to elicit

incriminating responses from Carroll and were therefore the

functional equivalent of an interrogation.   See Blaine v.
Commonwealth, 7 Va. App. 10, 15, 371 S.E.2d 838, 841 (1988).

     The admission of Carroll's statements at trial was not

harmless error.   The Commonwealth stressed that Carroll had

initially denied ownership of the jacket and then admitted it

when the officer found receipts bearing his name.   The

Commonwealth suggested to the jury that, because he denied

ownership, Carroll must have known that the cocaine was in the

jacket.

     The Commonwealth was required to prove that Carroll

intentionally and consciously possessed the cocaine.     Without the

denial of ownership, the Commonwealth could not have implied that

Carroll consciously possessed it with knowledge of its nature and

character.   Admission of Carroll's statements was therefore

reversible error.

     We affirm the denial of the suppression of the cocaine.     We

reverse the denial of the suppression of Carroll's statements




                               - 4 -
made before the Miranda rights and remand the cause for a new

trial not inconsistent with our ruling.
                                          Affirmed in part,
                                          reversed in part,
                                          and remanded.




                              - 5 -
Annunziata, J., concurring.

     I concur in the opinion of the majority.    I write separately

to address the Commonwealth's contention that Carroll's detention

was not the functional equivalent of an arrest because it was

authorized as incident to the execution of a lawful search

warrant, under the holding in Michigan v. Summers, 452 U.S. 705

(1981).   Under the facts of this case, there is no dispute that

Carroll's detention was lawful under the Fourth Amendment:       "for

Fourth Amendment purposes . . . a warrant to search for

contraband founded on probable cause implicitly carries with it

the limited authority to detain the occupants of the premises

while a proper search is conducted."     Id. at 705.   Such

detentions are typically analogous to limited, Terry-type

intrusions, id. at 699-703, "[a]lthough special circumstances, or

possibly a prolonged detention, might lead to a different

conclusion in an unusual case."     Id. at 705 n.21.

     In the comparatively nonthreatening, noncoercive environment

of a typical Terry-type detention, a reasonable person would not
believe that his or her freedom of action had been restrained in

any significant way so as to invoke Miranda.     Berkemer v.

McCarty, 468 U.S. 420, 436-37 (1984); United States v. Burns, 37

F.3d 276, 281 (7th Cir. 1994).    Contrary to the Commonwealth's

contention, however, it does not necessarily follow that because

the type of detention at issue is analogous to a Terry-type stop,

the detainee is not entitled to Miranda's protections.        See,




                                 - 6 -
e.g., Cherry v. Commonwealth, 14 Va. App. 135, 139, 415 S.E.2d

242, 244 (1992).   Instead, the issue is whether "the objective

circumstances would lead a reasonable person to believe he was

under arrest, thereby subjecting him or her to pressure impairing

the free exercise of the privilege against self-incrimination."

Id. at 140, 415 S.E.2d at 245.    The reviewing court must decide

"`whether there is a formal arrest or restraint on freedom of

movement' of the degree associated with a formal arrest."    Id. at

140-41, 415 S.E.2d at 245 (citations omitted).
     The circumstances of the present case were far more

intrusive and threatening than those characterizing a typical

Terry-type stop.   That both the detention and the questioning of

appellant were of short duration and were out of public view, is

not sufficient to dispel the "custodial" environment in which the

interrogation was conducted in this case.    See Wass, 5 Va. App.

at 34, 359 S.E.2d at 840.




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