                      COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons
Argued at Salem, Virginia


JOSE AUGUSTINE DELAROCHA
                                       MEMORANDUM OPINION * BY
v.       Record No. 1537-98-3    CHIEF JUDGE JOHANNA L. FITZPATRICK
                                           JUNE 1, 1999
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF CRAIG COUNTY
                       Duncan M. Byrd, Jr., Judge

              Shirley B. Jamison for appellant.

              John H. McLees, Jr., Assistant Attorney
              General (Mark L. Earley, Attorney General,
              on brief), for appellee.


         Jose Augustine Delarocha (appellant) was convicted of

driving under the influence, in violation of Code § 18.2-266.

Appellant contends that the trial court erred in refusing to

suppress the evidence because he was not given Miranda warnings

at the scene.     For the following reasons, we affirm.

                                   I.

         In reviewing the trial court's denial of the motion to

suppress, we view the evidence in the light most favorable to

the Commonwealth, granting to it all reasonable inferences

deducible therefrom.      See Giles v. Commonwealth, 28 Va. App.

527, 532, 507 S.E.2d 102, 105 (1998).     Although we review the

     *
     Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
trial court's findings of historical fact only for "clear

error," we review de novo the trial court's application of

defined legal standards to the facts of the case.     See id.

        An agreed statement of facts by the parties established

that on September 13, 1997, Trooper Lloyd Craddock (Craddock)

was dispatched to an automobile accident in the Little Cuba

Section of Craig County. 1   En route to the accident site,

Craddock met a deputy who had been present at the accident scene

and advised Craddock that appellant had been drinking.      When he

arrived at the scene, Craddock saw appellant's truck "which had

struck a tree."    At that time,

             [t]he trooper spoke with the driver, who
             advised the trooper that he had wrecked
             about 4:30 to 5:00 p.m., then he advised it
             was 5:00 p.m. Driver Delarocha also advised
             the trooper he had nothing to drink since
             the accident. The Commonwealth's Attorney
             asked the Trooper if when he first arrived
             if [sic] he noticed anything unusual about
             the physical condition of the defendant and
             the Trooper stated no.

             Delarocha then went on to advise the trooper
             that he had drunk 2-1/2 quarts, and that he
             had had his last drink somewhere on this
             road before he wrecked at 5:00 p.m. He also
             advised the trooper that he had no
             handicaps, was not on medication and that he
             had gone through the 9th grade and had his
             GED.




    1
     The record does not contain a transcript of the trial, but
includes a written statement of facts signed by the trial judge.

                                   - 2 -
Craddock had appellant perform several field sobriety tests,

after which appellant was advised of the preliminary alcosensor

and the implied consent law and placed under arrest.

                                 II.

     Appellant contends that the trial court erred by admitting

his statements in evidence.   He argues that at the time Craddock

began questioning him at the scene of the accident, he was "in

custody" for Miranda purposes and any evidence obtained prior to

his being advised of his rights was inadmissible.   We disagree.

     In Miranda v. Arizona, 384 U.S. 436 (1966), the United

States Supreme Court held that an individual must be warned

before any questioning by police of his right to remain silent

and his right to an attorney 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."   Id. at 478.   However, the Supreme Court later

observed that "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.'"   Oregon v. Mathiason, 429 U.S. 492, 495 (1977).

Additionally, Miranda does not affect "general questioning

                                - 3 -
of citizens in the fact-finding process."     Pruett v.

Commonwealth, 232 Va. 266, 271, 351 S.E.2d 1, 4 (1986).     "The

mere presence of an officer and the mere fact of an

investigation does not invoke Miranda."     Jordan v. Commonwealth,

216 Va. 768, 772, 222 S.E.2d 573, 577 (1976).

     The present case is controlled by Nash v. Commonwealth, 12

Va. App. 550, 404 S.E.2d 743 (1991), a factually similar case.

In that case, the defendant was involved in an automobile

accident and was later arrested for driving under the influence

of alcohol.   When the police arrived at the scene of the

accident, the defendant was found walking approximately one mile

from his car.   The police brought the defendant back to the

scene and questioned him concerning the accident.    During the

investigation, the arresting officer learned how the accident

occurred.    He smelled alcohol on the defendant and noticed that

the defendant’s eyes were bloodshot.    The officer asked the

defendant whether he had been drinking, and the defendant stated

that he had consumed five or six beers.   After administering

several field sobriety tests and an alcosensor test, the officer

placed the defendant under arrest for driving under the

influence.    The officer then informed the defendant of the

implied consent law and his Miranda rights.     See id. at 551-52,

404 S.E. at 743-44.

     The defendant filed a pretrial suppression motion, arguing

that any statements he made before he was given his Miranda

                                - 4 -
rights were inadmissible.    Affirming the trial court’s refusal

to suppress the evidence, we held that the defendant was not "in

custody" for Miranda purposes.     Id. at 553, 404 S.E.2d at 744.

We reasoned:

           Custodial interrogation means "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." However, persons
           temporarily detained pursuant to routine
           traffic stops are not "in custody" for
           Miranda purposes. In such cases, "the
           officer may ask the detainee a moderate
           number of questions to determine his
           identity and to try to obtain information
           confirming or dispelling the officer’s
           suspicions" that the detainee has committed
           a crime.

Id. at 552, 404 S.E.2d at 744 (citations omitted) (emphasis

added).   The record did not suggest that the defendant was

forced or unwilling to return to the accident scene and answer

the officer's investigatory questions.    Based on those facts, we

concluded in Nash that the defendant's statements were properly

admitted into evidence.     See id. at 553, 404 S.E.2d at 744.

     In the instant case, the facts are essentially identical to

the facts in Nash.   The statement of facts does not show that

prior to Craddock arriving on the scene the deputies had taken

appellant into physical custody or that appellant had remained

on the scene because he had yielded to their show of authority.

The record does not suggest that appellant was either forced or

unwilling to talk to Craddock and, therefore, appellant was not


                                 - 5 -
"in custody" for Miranda purposes.     The trooper had a reasonable

suspicion that appellant had committed a traffic violation as

his vehicle had struck a tree on the side of the road.    "Thus,

he was entitled to ask [appellant] a moderate number of

questions to determine [appellant's] identity and to confirm or

dispel his suspicions regarding the accident."     Id.

     Nevertheless, appellant argues that he was "in custody" for

Miranda purposes because Trooper Craddock testified on

cross-examination that appellant was not free to go.     We find

this argument without merit.   Whether a suspect is "in custody"

under Miranda "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) (citing Stansbury v. California, 511 U.S. 318, 323

(1994)).   "Subjective intentions play no role in ordinary,

probable-cause Fourth Amendment analysis."     Wren v. United

States, 517 U.S. 806, 813 (1996).    "[T]he fact that the officer

does not have the state of mind which is hypothecated by the

reasons which provide the legal justification for the officer's

action does not invalidate the action taken as long as the

circumstances, viewed objectively, justify that action."        Id.

(citing Scott v. United States, 436 U.S. 128, 138 (1978)

(interpreting United States v. Robinson, 414 U.S. 218 (1973))).



                               - 6 -
     In the instant case, Craddock's "subjective belief" that

appellant was not free to leave was not determinative of whether

appellant was "in custody" for Miranda purposes.    The record

demonstrates that appellant's statements were made during an

informal interview that was conducted on the side of the road.

Craddock never told appellant he was not free to leave, nor did

he draw a weapon, handcuff appellant or otherwise restrain

appellant's freedom at the scene to the degree associated with a

formal arrest.   Although there was a second police officer at

the scene, the record is silent as to whether that deputy talked

with appellant or had any interaction with him.    Moreover, the

investigation took place at a neutral setting, namely, the site

of the accident.

     A review of all the circumstances establishes that

appellant was not subjected to a custodial interrogation prior

to his arrest.   Accordingly, no Miranda warnings were required,

and the trial court did not err in refusing to suppress the

evidence.   Appellant's conviction is affirmed.

                                                          Affirmed.




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