                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Beales and Chafin
UNPUBLISHED


              Argued by teleconference


              COMMONWEALTH OF VIRGINIA
                                                                             MEMORANDUM OPINION BY
              v.     Record No. 1220-13-4                                     JUDGE WILLIAM G. PETTY
                                                                                 NOVEMBER 26, 2013
              JOHN HENRY McCRAY


                                   FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                                                Charles S. Sharp, Judge

                               Susan Baumgartner, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on briefs), for appellant.

                               Ian Whittle, Assistant Public Defender (Office of the Public
                               Defender, on brief), for appellee.


                     Pursuant to Code § 19.2-398, the Commonwealth appeals the decision of the trial court to

              grant John Henry McCray’s motion to suppress statements he made to police officers. On

              appeal, the Commonwealth argues that the trial court erred in ruling that McCray was subjected

              to custodial interrogation, which required the police officers to advise McCray of his Miranda

              rights prior to questioning him. We agree and reverse the trial court’s suppression of McCray’s

              statements.1




                     
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                        McCray was also indicted on two misdemeanors, obtaining money or property by false
              pretense and driving on a suspended or revoked operator’s license. Pursuant to Code § 19.2-398,
              the Court will review the Commonwealth’s appeal of the pretrial suppression order only insofar
              as it pertains to the felony indictments.
                                         I. BACKGROUND

        Because the parties are fully conversant with the record in this case and this

memorandum opinion carries no precedential value, we recite only those facts and incidents of

the proceedings as are necessary to the parties’ understanding of the disposition of this appeal.

        “In an appeal by the Commonwealth of an order of the trial court suppressing evidence,

the evidence must be viewed in the light most favorable to the defendant and findings of fact are

entitled to a presumption of correctness unless they are plainly wrong or without evidence to

support them.” Commonwealth v. Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992).

        On January 11, 2013, Deputy Siegel and his field training officer, Deputy Miller, were

dispatched to a Wal-Mart on a reported larceny in progress. Both deputies were in uniform, in a

marked police cruiser, and displaying their badges of authority. The deputies were informed by

dispatch that the suspects were two black men in a red or maroon SUV with Washington, D.C.

license plates.

        When the deputies arrived at the Wal-Mart, they were informed by dispatch that the SUV

was backing out of a parking space directly in front of them. Deputy Siegel noticed that a

Wal-Mart loss prevention employee was pointing at the SUV. The SUV, and the two men inside

it, matched the description that was given by dispatch.

        Deputy Siegel activated the emergency lights, but not the siren, of his police cruiser, and

the SUV stopped where it was, which was on an access road connecting the parking lot to the

highway. Deputy Siegel’s police cruiser was perpendicular to the SUV, and there was nothing in

front of the SUV to block it in.

        Deputy Siegel approached the SUV. Deputy Siegel talked with both McCray, who was

driving the SUV, and a passenger, who was later identified as Brandon Watts. Deputy Siegel




                                                -2-
obtained a license from McCray, which he retained throughout the investigation, and received

identifying information from Watts. Deputy Siegel returned to the police cruiser.

       After returning to the police cruiser, Deputy Siegel ran a computer check on McCray’s

license and discovered that it was suspended in Virginia. Deputy Siegel ran a computer check

using the identifying information he received from Watts and could not locate anyone in

Virginia, Washington, D.C., or Maryland with the name and birth date that Watts provided.

       Deputy Siegel, accompanied by Deputy Miller, approached the SUV to investigate the

discrepancy with Watts’s identity. Deputy Miller did not speak; instead, he merely observed

Deputy Siegel’s actions. After initiating contact with Watts, Deputy Siegel told McCray to

remain in his vehicle and that he was not free to leave. Deputy Siegel then turned his attention to

Watts and asked him whether he had accidentally provided incorrect information. Watts initially

denied that he provided incorrect information, but eventually provided accurate identifying

information. Deputy Siegel then arrested Watts for providing false information. The arrest took

place approximately fifteen to twenty minutes after the SUV was stopped.

       At some point near the end of Deputy Siegel’s discussion with Watts about his providing

of false information, Deputy Howell and his field training officer, Sergeant Walker, arrived on

the scene. Deputy Howell and Sergeant Walker arrived in the same police cruiser, and they did

not activate its emergency lights. Deputy Howell and Sergeant Walker stood next to the SUV

while Deputy Siegel was talking with Watts.2

       Around the same time that Deputy Howell and Sergeant Walker arrived on the scene, two

loss prevention employees from Wal-Mart also arrived on the scene. The employees told the

officers the details of their report of larceny. The loss prevention employees reported that Watts

stole an iPod charger and left the store. Watts and McCray then entered the store together and

       2
         There is no evidence that Deputy Howell and Sergeant Walker talked with McCray
while they were standing near the SUV.
                                            -3-
returned the iPod charger for a gift card, which they used to purchase a carton of cigarettes and

two DVDs.

       Watts refuted the story of the loss prevention employees. Watts said that he purchased

the wrong charger, so he re-entered the store with McCray to return it. Watts insisted he had a

receipt for the charger, which was located in the SUV. McCray was ordered to step out of the

SUV. The SUV was searched, but no receipt was found. However, the officers did notice two,

identical, boxed, thirty-two inch LCD televisions in the back of the SUV.

       After ordering McCray out of the SUV, Deputy Siegel performed a pat-down search of

McCray for weapons so that McCray could keep his hands in his pockets because it was cold

outside. McCray then stood near the rear of the SUV as Deputy Siegel asked him questions

about the suspected larceny. McCray gave the same story as Watts. Deputy Siegel then asked

McCray about the televisions that were found in the back of the SUV.

       While Deputy Siegel was questioning McCray, the other officers were talking with the

loss prevention employees. The televisions were identified as Wal-Mart merchandise. The loss

prevention employees contacted a nearby Wal-Mart, and it confirmed that the televisions were

missing from its inventory.

       McCray initially told Deputy Siegel that the televisions were a gift from a friend and that

he was planning on giving them to another friend. Deputy Siegel suggested the televisions were

stolen. In response, McCray said that Watts entered the Wal-Mart alone and exited with the

televisions. After further questioning from Deputy Siegel,3 in which the same questions were

asked four or five times, McCray admitted that he had known that Watts planned to steal the



       3
          On brief, McCray alleges that “at least three officers [were] doing the questioning.”
This assertion is contrary to Deputy Siegel’s testimony at the suppression hearing. See App. at
45-46, 62. While Deputy Siegel confirmed that two other officers stood beside him and listened,
there is no evidence in the record that they actually asked McCray any questions.
                                                -4-
televisions. The officers subsequently arrested McCray. McCray’s admission and arrest came

approximately thirty to forty minutes after he was first stopped.

        At a suppression hearing, the trial court held that McCray was subjected to custodial

interrogation without Miranda warnings; therefore, it suppressed the statements that McCray

made while he was detained. The Commonwealth appealed to this Court.

                                           II. ANALYSIS

        On appeal, the Commonwealth contends that McCray was not in custody for purposes of

Miranda when Deputy Siegel questioned him, and, thus, Miranda warnings were not required.

We agree.

                Under Miranda, before a suspect in police custody may be
                questioned by law enforcement officers, the suspect must be
                warned that he has a right to remain silent, that any statement he
                makes may be used as evidence against him, and that he has a right
                to have an attorney, either retained or appointed, present to assist
                him.

Dixon v. Commonwealth, 270 Va. 34, 39, 613 S.E.2d 398, 400 (2005). Miranda warnings,

however, are required only during a custodial interrogation. Id.

                        Whether a person is “in custody” for purposes of one’s
                rights pursuant to Miranda is a mixed question of law and fact. In
                our analysis, “we are bound by the trial court’s findings of
                historical fact unless ‘plainly wrong’ or without evidence to
                support them.” However, “we review de novo the trial court’s
                application of defined legal standards, such as . . . ‘custodial
                interrogation,’ to the particular facts of a case.”

Id. (citations omitted).

        To determine whether a person is in custody for the purposes of Miranda, we look to the

circumstances of each case. Harris v. Commonwealth, 27 Va. App. 554, 564, 500 S.E.2d 257,

262 (1998). “‘The ultimate inquiry is simply whether there is a formal arrest or restraint on

freedom of movement of the degree associated with formal arrest.’” Id. (quoting California v.

Beheler, 463 U.S. 1121, 1125 (1983)). This custody determination “‘depends on the objective
                                                -5-
circumstances of the interrogation, not on the subjective views harbored by either the

interrogating officers or the person being questioned.’” Id. (quoting Stansbury v. California, 511

U.S. 318, 323 (1994)). Therefore, if a “reasonable person in the suspect’s position would have

understood that he or she was under arrest,” then Miranda warnings must be given before police

questioning. Id.

       In determining whether a suspect is in custody, we consider several circumstances:

               whether police were able to physically seize the suspect, whether
               the suspect was physically restrained, whether firearms were
               drawn, whether there was physical contact between police and the
               suspect, whether the suspect was confined in a police car, whether
               police told the suspect he or she was free to leave, whether police
               engaged in other incidents of formal arrest such as booking,
               whether friends or relatives of the suspect were present, and
               whether more than one officer was present. Of equal importance
               are the officers’ demeanor during the encounter, the length of the
               questioning, and the nature of the questions asked, the location of
               the encounter, and whether the subject was uniquely susceptible to
               intimidation.

Hasan v. Commonwealth, 276 Va. 674, 679-80, 667 S.E.2d 568, 571 (2008) (citations omitted).

But “this list is not exhaustive, and other circumstances might bear on the question whether

police have curtailed a particular suspect’s freedom to a ‘degree associated with a formal

arrest.’” Id. at 680, 667 S.E.2d at 571 (quoting Beheler, 463 U.S. at 1125).

       Moreover, “a Terry stop of a person to investigate suspicion is not necessarily subject to

the requirements of Miranda.” Bosworth v. Commonwealth, 7 Va. App. 567, 572, 375 S.E.2d

756, 759 (1989). Investigative stops allow a police officer to

               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. . . . The comparatively nonthreatening
               character of detentions of this sort explains the absence of any
               suggestion [in the Supreme Court of the United States’s] opinions
               that Terry stops are subject to the dictates of Miranda.

Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984).

                                               -6-
       Here, the trial court held,

                       I think all of those circumstances taken together indicate
               that the presence of that number of officers, the coercive nature of
               the encounter, coercive in the sense that his codefendant was
               arrested in his presence after about a half hour of questioning, and
               the degree to which he was restrained, both by having his license
               maintained and by being told he couldn’t leave, I think all of those
               indicators suggest that a reasonable person under those
               circumstances would believe I am in police custody. So I find that
               he was in custody.

       It is without dispute that McCray’s freedom of movement was restrained. This restraint,

however, took place pursuant to an investigative stop that was based on reasonable suspicion that

McCray was involved in a larceny. The issue here is whether the investigative stop evolved into

a formal arrest that required Miranda warnings. Thus, we consider all of the circumstances of

McCray’s detention as viewed from the perspective of a reasonable person in deciding “whether

there is a formal arrest or restraint on freedom of movement of the degree associated with formal

arrest.” Beheler, 463 U.S. at 1125.

       We first note there is no evidence that anyone other than Deputy Siegel questioned

McCray. Further, for the first fifteen to twenty minutes of the investigative stop, there were only

two officers present, Deputy Siegel and Deputy Miller. The other officers arrived later in the

stop, but did not take part in the questioning of McCray. In Hasan, a case which the appellee

heavily relies upon, the defendant was confronted by six officers, and a K-9 unit, standing in

formation around him with their guns drawn. 276 Va. at 680-81, 667 S.E.2d at 572. The

Supreme Court held that a reasonable person in those circumstances would understand that he

was in custody. Id. at 681, 667 S.E.2d at 572. Hasan is distinguishable from this case. Here, the

officers did not draw their weapons. The officers did not stand in formation around McCray.

Instead, only one officer questioned McCray. Thus, we hold that the number of officers present

at the scene would not lead a reasonable person to believe that he was in custody.

                                               -7-
       Further, the encounter was not coercive. McCray was not physically restrained.4 Deputy

Siegel’s order to McCray to remain in his vehicle and statement that McCray was not free to

leave do not amount to physical restraint. In Cherry v. Commonwealth, 14 Va. App. 135, 141,

415 S.E.2d 242, 245 (1992), the defendant was told to step out of his vehicle by a police officer

who was conducting a narcotics investigation. The defendant did so. We held that this did not

amount to a formal arrest for the purposes of Miranda because “[the defendant] had not been

placed under formal arrest or restrained in any significant way.” Id. Here, McCray was told to

remain in his vehicle, and then subsequently told to step out of his vehicle. McCray was not

placed in handcuffs, and he was not placed in a police cruiser. Cf. Dixon, 270 Va. at 40-41, 613

S.E.2d at 401 (finding that defendant was in custody because he was handcuffed and placed in a

locked police car). The only physical contact between the officers and McCray was a pat-down

search to make sure that McCray did not have any weapons on him while they were talking.

Thus, we hold that McCray was not physically restrained to the point that a reasonable person in

his position would believe that he was in custody.5

       Moreover, the length of McCray’s detention was not unreasonable. The entire

investigation took approximately thirty to forty minutes. The first twenty minutes of the stop

       4
         The trial court found it “very significant that [McCray’s] license was taken and held.”
The retention of a suspect’s license is not necessarily a factor that helps to determine whether
McCray was in custody. Instead, the retention of a license is a factor to determine whether a
person has been seized for the purposes of the Fourth Amendment. McCain v. Commonwealth,
261 Va. 483, 491, 545 S.E.2d 541, 546 (2001) (“[A] police request made in a public place for a
person to produce some identification, by itself, generally does not constitute a Fourth
Amendment seizure.”). There is no argument that McCray was not seized. McCray was seized
pursuant to an investigative stop. Thus, we do not find this circumstance relevant to our
determination of custody.
       5
         The trial court noted that Watts’s arrest was a circumstance that it considered in holding
that McCray’s detention was coercive. However, Watts was arrested for providing false
information to the officers. Watts was not arrested for the larceny. McCray was present when
Watts gave the officers false information. McCray was present, albeit sitting in the car, when
Watts was questioned about his identity. Thus, we do not find this circumstance relevant to our
determination of custody.
                                                -8-
were dedicated to the investigation of Watts. Thus, although McCray was detained for thirty to

forty minutes, he was actually investigated, or questioned, for a maximum of twenty minutes.

This is not an unreasonable period of time to investigate a suspected crime. See Miller v.

Commonwealth, 16 Va. App. 977, 980-81, 434 S.E.2d 897, 900 (1993) (holding that a wait of

almost an hour was reasonable during investigative detention); Burgess v. Commonwealth, 14

Va. App. 1018, 1022, 421 S.E.2d 664, 667 (1992) (holding that a forty-minute detention was

reasonable). Indeed, “[i]f a police officer is so justified in stopping a suspect, ‘the officer may

detain the suspect to conduct a brief investigation.’” Lawson v. Commonwealth, 55 Va. App.

549, 555, 687 S.E.2d 94, 97 (2010) (quoting McGee v. Commonwealth, 25 Va. App. 193, 202,

487 S.E.2d 259, 263 (1997) (en banc)). Deputy Siegel was justified in stopping McCray.

Deputy Siegel was further justified in detaining McCray for a reasonable period of time to

conduct the brief investigation of the larceny. Therefore, we hold that the length of McCray’s

detention would not lead a reasonable person in his position to believe that he was in custody.

       After reviewing all of the circumstances of this case, we hold that a reasonable person

would not believe that he was in custody to the degree associated with a formal arrest.

                                         III. CONCLUSION

       For the foregoing reasons, we reverse the trial court’s granting of McCray’s motion to

suppress his statements.

                                                                                           Reversed.




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