                               COURT OF APPEALS OF VIRGINIA


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


COMMONWEALTH OF VIRGINIA
                                                              MEMORANDUM OPINION* BY
v.     Record No. 1932-06-1                                    JUDGE ROBERT P. FRANK
                                                                 DECEMBER 28, 2006
CARL L. DESEI


               FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                               A. Bonwill Shockley, Judge

                 Alice T. Armstrong, Assistant Attorney General II (Robert F.
                 McDonnell, Attorney General, on briefs), for appellant.

                 Charles B. Lustig (Lawrence H. Woodward, Jr.; Shuttleworth,
                 Ruloff, Giordano & Swain, P.C., on brief), for appellee.


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

granting Carl Desei’s motion to suppress his statements to the police. The Commonwealth contends

the Child Protective Services (CPS) worker’s actions were not the “functional equivalent” of

interrogation designed to elicit incriminating statements by Desei. Alternatively, the

Commonwealth argues that it was Desei, and not government authorities, who initiated the

exchange that resulted in Desei’s incriminating statements. For the reasons stated, we reverse the

judgment of the trial court and remand for further proceedings.

                                          BACKGROUND

       Detective Neives of the Virginia Beach Police Department arrested Desei on one charge of

taking indecent liberties with a minor, in violation of Code § 18.2-370(A)(1), and two charges of

taking indecent liberties with a minor, in violation of Code § 18.2-370(A)(3). At the time of his

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
arrest, Neives read Desei the warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Desei

responded that he “wanted his attorney.” Neives contacted Desei’s attorney, who told Neives not to

speak to his client.

        Neives, accompanied by Virginia Beach Department of Human Services CPS workers

Megan Revis and Kristin Kovak,1 took Desei to central processing for booking. Desei appeared

before a magistrate, who denied him bond.

        While Neives was in the magistrate’s office completing paperwork to process Desei in the

jail, Revis approached Desei and introduced herself. She gave Desei a pamphlet entitled “Virginia

Cases About Children and Their Families.” Revis completed the last page of the pamphlet, filling

in Desei’s name, the allegations, and the name of the victim. She also completed the appropriate

blanks with her name, agency, and telephone number.

        The pamphlet advises the victim’s family and the alleged perpetrator, inter alia, of the

investigative procedures for a CPS complaint, the disposition of CPS reports, the procedure for

appealing a CPS finding, and the right to review the report. Revis characterized the meeting with

Desei as “a very routine procedure” mandated by department policy.2 Revis testified that she did

not ask Desei any questions during this meeting.


        1
            At the time of Desei’s arrest, Revis was training Kovak to be a social worker with CPS.
        2
            Code § 63.2-1516.01 provides, in part:

                 The local department shall, at the initial time of contact with the
                 person subject to a child abuse and neglect investigation, advise
                 such person of the complaints or allegations made against the
                 person, in a manner that is consistent with laws protecting the
                 rights of the person making the report or complaint.

      Further, the Virginia Administrative Code, 22 VAC 40-705-80 (2006), dealing with the
Department of Social Services and Child Protective Services, requires, in relevant part:

                 B. During the course of the investigation, the child protective
                 services (CPS) worker shall make and record in writing in the state
                 automated system the following contacts and observations. When
                 any of these contacts or observations is not made, the CPS worker
                                                 -2-
       She also advised Desei of the name of the victim and that he had the right to speak with

Revis about the allegations. She gave Desei her phone number and “explained to him if he wanted

to talk to me, that was how he could reach me.” Revis also presented Desei with a “protective

agreement,” which is an agreement for Desei not to have any contact with the victim. Desei signed

the agreement. Revis testified:

               While I was explaining [the protective agreement] to him, he
               began to ask questions about [R.M.], who was the alleged victim.
               How was he doing? What was going to happen to [R.M.]? Telling
               me how much he cared for [R.M.] and I explained to him that
               [R.M.] would have to go to therapy because -- that [R.M.] had
               disclosed that he had been harmed, and he wanted to know what
               that entailed, and I explained to him what that entailed -- about
               validation for victims is important in sexual abuse. In the
               meantime, Mr. Neives was filling out paperwork, because he had
               already -- [Desei] was not going home that night.

Revis reiterated that if Desei wanted to speak to her he could call her. Revis told Desei that, if he

wanted her to talk only to his attorney, he must sign a release allowing her to share information

with Desei’s attorney.

       Revis testified that as they were “leaving the jail house . . . [Desei said] wait, wait, wait.

Don’t leave. I want to talk to you.” She stated:

               As we were leaving, he asked us to talk to us. He was reminded by
               -- a couple times he tried to talk to Detective Neives. He kept

               shall record in writing why the specific contact or observation was
               not made.

                                    *    *   *     *   *   *    *

               2. The child protective services (CPS) worker shall conduct a
               face-to-face interview with the alleged abuser and/or neglector.

                  a. The CPS worker shall inform the alleged abuser and/or
               neglector of his right to tape record any communication pursuant to
               § 63.2-1516 of the Code of Virginia.

                  b. The local department shall provide the necessary equipment
               in order to tape record the interview and retain a copy of the tape
               for the record.

                                                 -3-
               telling him, I cannot talk to you; and then when we were leaving
               and he asked to talk to us, Detective Neives reminded him, as I
               reminded him, that he didn’t -- he had a lawyer who told him not
               to talk to us; and he said, No, he wanted to. For [R.M.’s] sake, he
               wanted to talk to us.

       Neives corroborated the testimony of Revis. Neives stated that while Revis was explaining

the CPS process to him, Desei began to ask questions about the victim. Neives advised Desei that

they could not talk to him about the incident because he had invoked his right to counsel. Desei

persisted in asking questions, and Neives again told Desei that if he wanted to talk to them, he

would have to waive his right to his attorney. Desei indicated that he wished to waive his rights.

Neives contacted a Commonwealth’s attorney, explaining the situation to him, and had someone

bring him a Miranda rights waiver form. Revis retrieved a tape recorder from her car in order to

record the interview. Approximately 15-20 minutes elapsed between Desei’s first indication that

he wished to waive his rights and the beginning of the taped interview.

       At the outset of the interview, Desei was again advised of his Miranda rights. Desei

received two waiver forms, one provided by Neives and one provided by Revis. Desei initialed

by each of the rights as it was explained to him, and signed the bottom of both forms. Neives

and Revis both testified that they did not promise Desei anything in exchange for his statements

about the incident.

       In granting the motion to suppress, the trial court found Revis to be a state actor who

engaged in the “functional equivalent” of interrogation. The trial court determined that Revis

initiated the contact with appellant “concerning the allegations against him.” The trial court

concluded in its written opinion:

               The statements made by Revis to Desei were not mandated by
               either Virginia statute . . . or Virginia Department of Social
               Services, Child Protective Services, regulation . . . indeed, these
               words and actions on the part of this state actor are not normally
               attendant to arrest and custody and a reasonable observer would
               view Revis [sic] statements as reasonably likely to and designed to
                                                 -4-
               elicit an incriminating response from the suspect. Therefore, these
               statements must be suppressed as unlawfully obtained because the
               suspect did not re-initiate the conversation following the
               invocation of his Fifth Amendment rights.

       This appeal follows.

                                            ANALYSIS

       The Commonwealth maintains that Revis had a legitimate reason, mandated by the Code

of Virginia and by CPS administrative regulations, for approaching Desei and that her actions

were similar to routine booking procedures. The Commonwealth argues that merely advising

Desei of his statutory and procedural rights in a CPS investigation is not the “functional

equivalent” of interrogation. Alternatively, the Commonwealth contends that Desei reinitiated

contact with Revis and Neives after they terminated their discussion with him.

       On appeal from a trial court’s denial of a motion to suppress, the burden is on the

appellant to show that the trial court’s decision constituted reversible error. See Stanley v.

Commonwealth, 16 Va. App. 873, 874, 433 S.E.2d 512, 513 (1993). We view the evidence in

the light most favorable to the prevailing party, granting to it all reasonable inferences fairly

deducible therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,

48 (1991). 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 to the particular facts of a

case. See Shears v. Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996); see also

Ornelas v. United States, 517 U.S. 690, 699 (1996).

       The facts here are not in dispute. Thus, we determine de novo the issues before us.

       Included among the safeguards established in Miranda v. Arizona, 384 U.S. 436 (1966),

is the right of a suspect to have counsel present at any custodial interrogation and to terminate

the interrogation by invoking this right. See Edwards v. Arizona, 451 U.S. 477, 485-86 (1981);

Miranda, 384 U.S. at 469, 475. “[A]n accused . . . , having expressed his desire to deal with the

                                                 -5-
police only through counsel, is not subject to further interrogation by the authorities until counsel

has been made available to him, unless the accused himself initiates further communication,

exchanges, or conversations with the police.” Edwards, 451 U.S. at 484-85.

       Only if the accused initiates further “communication, exchanges, or conversations with

the police,” and only if those communications result in the accused changing his or her mind and

freely and voluntarily waiving the right to counsel, may the police resume interrogation without

violating the Edwards rule. Arizona v. Roberson, 486 U.S. 675, 682 (1988).

               Once an accused asserts his or her right to counsel, subsequent
               waiver of that right is not sufficient to make admissible any
               incriminating statements thereafter obtained, even if investigators
               have re-Mirandized the accused, unless the statements are initiated
               by the defendant and shown to be based on a knowing, intelligent,
               and voluntary waiver.

Giles v. Commonwealth, 28 Va. App. 527, 531, 507 S.E.2d 102, 105 (1998). The

Commonwealth bears the burden of proving, by a preponderance of the evidence, that the

defendant’s waiver of counsel was voluntary, knowing, and intelligent. Colorado v. Connelly,

479 U.S. 157, 168 (1986).

       In evaluating the admissibility of a statement under the Edwards rule, we apply a

three-part analysis.

               First, the trial court must determine whether the accused
               “unequivocally” invoked his or her right to counsel. Second, the
               trial court must determine whether the accused, rather than the
               authorities, initiated further discussions or meetings with the
               police. Third, if the accused did initiate further discussions or
               conversations with police, the trial court must then ascertain
               whether the accused knowingly and intelligently waived the
               previously invoked right to counsel.

Giles, 28 Va. App. at 532, 507 S.E.2d at 105. Because the Commonwealth concedes that Desei

properly invoked his right to counsel, the first element of the Edwards inquiry is not at issue




                                                -6-
here. Thus, we determine de novo whether Desei initiated the discussion that resulted in his

statements to Neives and Revis.

       To make such a determination, we must establish whether Desei’s statements

“represent[ed] a desire . . . to open up a more generalized discussion relating directly or

indirectly to the investigation.” Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983). “[I]nquiries

or statements, by either an accused or a police officer, relating to routine incidents of the

custodial relationship, will not generally ‘initiate’ a conversation.” Id.

       The trial court held that, when Revis introduced herself to Desei and explained the

procedures of the CPS investigation to him, this was the “functional equivalent” of an

interrogation by Revis. The trial court found that Revis initiated the discussion by approaching

Desei and that no statute authorized Revis to talk to Desei once he invoked his right to counsel.3

Thus, the trial court ruled that, by initiating an interrogation of Desei, Revis had violated the

Edwards rule and Desei’s statements were suppressed.4

       However, an examination of the record reveals that Desei made no incriminating

statements during the initial conversation with Revis. Revis introduced herself to Desei,

explained the CPS procedures by going over a pamphlet she provided to Desei, and reviewed the

contents of the “protective agreement” with Desei. At that time, Desei asked Revis how the

victim was doing, asked what could happen to the victim, and stated that he cared about the

victim. Desei inquired as to what therapy would entail for the victim, and Revis responded that

“validation” for the victim would be important. Revis concluded their conversation by advising




       3
          Because of our holding today, we need not decide whether Revis had statutory authority
to talk to Desei once he invoked his right to counsel.
       4
        As the trial court found that the Commonwealth could not satisfy the second prong of
the Edwards analysis, the trial court never made a determination as to the third prong, whether
Desei knowingly and intelligently waived his previously invoked right to counsel.
                                               -7-
Desei that he could contact her at the number she had provided on the CPS pamphlet if he had

any questions for her. The interview ceased when Revis and Neives began to leave the jail.

       At this point, Desei had made no statements to Revis or Neives that were incriminating.

Because there were no statements to suppress as a result of this exchange, we need not address

whether Revis’s conduct during the first conversation was the “functional equivalent” of

interrogation. 5 See Wilson v. Commonwealth, 45 Va. App. 193, 206, 609 S.E.2d 612, 618

(2005) (ruling that the court need not decide whether the officer’s conduct in administering field

sobriety tests violated the Fourth Amendment; the accused refused to submit to the tests, so there

was no evidence that resulted from the officer’s conduct to suppress); see also People v. Kinnard,

467 N.E.2d 886, 887 (N.Y. 1984) (holding that, where police officers unlawfully continued to

question the accused after he had invoked his Miranda rights, this did not affect his later

spontaneous confession, as the accused made no incriminating statements during the first

interview, officers ended that interview, and the accused later initiated contact by indicating that

he wanted to make a statement).

       Clearly, Neives and Revis terminated their contact with Desei when they began to leave

the jail. Desei recognized this termination, as he asked them not to leave because he wanted to

talk to them. Neives repeatedly advised Desei that he could not talk to him without an attorney,

yet Desei insisted on speaking with Neives and Revis without his attorney present. By persisting

in his requests to talk to them, Desei reinitiated the contact with authorities that led to his

incriminating statements. See Bradshaw, 462 U.S. at 1045-46 (holding that the accused, after

invoking his right to counsel, reopened the dialogue with police officers by inquiring, “Well,

what is going to happen to me now?”); King v. Commonwealth, 243 Va. 353, 362, 416 S.E.2d



       5
         On remand, the trial court may consider the effect of Revis’s contact with Desei on the
voluntariness of Desei’s waiver of his Miranda rights.
                                              -8-
669, 673 (1992) (finding that the accused initiated the exchange with officers after invoking his

right to counsel by asking why they were gathering evidence and by stating, “if you got

questions, just ask me”); Foster v. Commonwealth, 8 Va. App. 167, 173-74, 380 S.E.2d 12,

15-16 (1989) (holding that the accused initiated the conversation with officers after invoking his

right to counsel by continuing to assert his intent to talk to officers “no matter what his attorney

advised”).

       Therefore, we find that Desei initiated the contact with Neives and Revis that resulted in

his incriminating statements.

       Because the trial court found that the government had initiated the contact with Desei, the

trial court never reached the third prong of the Edwards analysis, namely whether Desei

knowingly and intelligently waived his previously invoked right to counsel. See Quinn v.

Commonwealth, 25 Va. App. 702, 714, 492 S.E.2d 470, 476 (1997) (holding that, because

meeting was initiated by authorities after the accused had invoked his right to counsel, the

Commonwealth was precluded from proving that a valid waiver of his rights occurred at that

meeting). This is a question of fact that must be resolved by the trial court, based on the totality

of the circumstances. See Harrison v. Commonwealth, 244 Va. 576, 581, 423 S.E.2d 160, 163

(1992) (holding that “the inquiry whether a waiver of Miranda rights was made knowingly and

intelligently is a question of fact” based upon the totality of the circumstances that must be

determined by the trial court). Thus, we must remand this case to the trial court for a

determination of whether Desei, having initiated the dialogue with Revis and Neives, knowingly

and intelligently waived his previously invoked right to counsel.

                                           CONCLUSION

       We conclude the trial court erred in finding that the government initiated the contact with

Desei and in granting Desei’s motion to suppress. We reverse the judgment of the trial court and

                                                -9-
remand for a determination of whether Desei knowingly and intelligently waived his previously

invoked right to counsel.

                                                                      Reversed and remanded.




                                            - 10 -
