                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Decker and AtLee
              Argued at Chesapeake, Virginia
UNPUBLISHED




              ELISEO GRANADO, JR.
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1354-14-1                                  JUDGE MARLA GRAFF DECKER
                                                                                DECEMBER 5, 2017
              COMMONWEALTH OF VIRGINIA


                               UPON REMAND FROM THE SUPREME COURT OF VIRGINIA

                               FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                                              Bruce H. Kushner, Judge

                               Kathleen A. Ortiz, Public Defender, for appellant.

                               Eugene Murphy, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Eliseo Granado, Jr., appeals his conviction for driving under the influence of alcohol, in

              violation of Code § 18.2-266. He argues that the trial court erred by denying his motion to

              suppress evidence pursuant to the United States Constitution. We hold that the circuit court did

              not err in denying the motion. Accordingly, we affirm the conviction.

                                                      I. BACKGROUND1

                     In the early morning hours of December 25, 2012, Officer B.D. Keys of the Chesapeake

              Police Department received a dispatched call for service about a disorderly male “who had been

              asked to leave a gathering at 1901 Kelly Run.” As Officer Keys neared the reported location, a



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                      In ruling on the propriety of the trial court’s decision on a motion to suppress, this Court
              views the evidence in the light most favorable to the party who prevailed below, in this case the
              Commonwealth. E.g., Branham v. Commonwealth, 283 Va. 273, 279, 720 S.E.2d 74, 77 (2012).
gray Cadillac DeVille sedan passed him. Keys did not notice the car being driven in an illegal or

improper manner.

       Officer Keys then received an update from the dispatcher that the disorderly man “was

intoxicated, possibly armed,” and had left the original location in “a light-colored Cadillac

DeVille sedan.” Officer Keys changed his route in order to find the Cadillac DeVille that had

passed him. A second officer joined Keys in the search for the vehicle. They spotted a gray

Cadillac DeVille with its headlights on parked on a nearby road.

       Both officers stopped their police cars. Officer Keys directed his spotlight at the Cadillac

and saw the appellant in the driver’s seat. As the officers approached the sedan, they ordered the

appellant to show his hands, but he did not comply despite being told to do so several times.

When the appellant appeared to reach forward, both officers drew their weapons and pointed

them at him. Keys noticed that the car’s engine was running. The appellant took the keys out of

the ignition and threw them over his shoulder into the back seat of the car. Officer Keys

approached the driver’s side of the car and forced the appellant to get out. Both officers

“physically directed” the appellant to the rear of the car, “took” him to the ground and placed

him in handcuffs with his hands behind his back. The two officers then brought him to his feet

and told him to stand at the rear driver’s side of the Cadillac. Through the car windows, they

saw keys in the back seat but did not see a weapon.

       Officer Keys noticed that the appellant’s eyes were bloodshot and his face was flushed.

The appellant appeared “disheveled” and had a strong odor of alcohol about his person. Officer

Keys asked the appellant what he had been doing. The appellant responded, “What the fuck are

you doing? I know my rights, this is wrong. I just parked my car and was going to sleep it off,

so you didn’t see me driving.” Keys then asked the appellant if he had “been drinking.” The

appellant replied, “It doesn’t matter, I wasn’t driving.” The appellant’s speech was slurred.

                                                -2-
       The officers asked the appellant if he had any weapons or threw any weapons in the back

seat. He replied, “No, I don’t. I took my keys out of the ignition and threw them in the back

seat.” Two empty handgun holsters were found in the back seat of the appellant’s car.

       Officer Keys told the appellant that he wanted to conduct field sobriety tests, but the

appellant refused to participate. Keys offered the appellant a preliminary breath test, but he

again refused. Keys arrested him for driving under the influence of alcohol. The appellant was

unsteady on his feet as he walked to the police car. The officer advised him of his rights

pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).

       The appellant asked the trial court to suppress the statements that he made to Keys prior

to being advised of his Miranda rights.2 He also requested that the trial court suppress evidence

of all the events that occurred after the officers removed him from his car. He argued that the

police kept him under detention even after the officers had dispelled the concern that he was

armed. The trial court denied the motion to suppress.

       After hearing the evidence, the court convicted the appellant of driving while under the

influence of alcohol, in violation of Code § 18.2-266. He was sentenced to ninety days in jail,

with all time suspended.

                                         II. ANALYSIS

       The appellant argues that the trial court erred by denying his motion to suppress evidence

of his statements to police in violation of the Fifth Amendment of the United States Constitution.

He also contends that the court erred under the Fourth Amendment by not suppressing evidence

obtained during his continued detention after police determined that he did not have a weapon

and was not engaged in disorderly conduct.


       2
        The appellant filed his motion to suppress less than seven days before trial, and the
Commonwealth objected to it as untimely. See Code § 19.2-266.2; Rule 3A:9. The trial court
found “good cause” to hear the motion and overruled the objection.
                                              -3-
       “When challenging the denial of a motion to suppress evidence on appeal, the defendant

bears the burden of establishing that reversible error occurred.” Mason v. Commonwealth, 291

Va. 362, 367, 786 S.E.2d 148, 151 (2016). Both of the assignments of error on appeal present

mixed questions of law and fact. See, e.g., Thompson v. Keohane, 516 U.S. 99, 102 (1995);

McCain v. Commonwealth, 275 Va. 546, 551, 659 S.E.2d 512, 515 (2008). In ruling on the

propriety of a circuit court’s decision to deny the motion, the appellate court views the evidence

in the light most favorable to the Commonwealth. E.g., Hairston v. Commonwealth, 67

Va. App. 552, 560, 797 S.E.2d 794, 798 (2017). This Court also affords to the prevailing party

the benefit of all inferences fairly deducible from the evidence. Mason, 291 Va. at 367, 786

S.E.2d at 151. Further, we are “bound by the circuit court’s findings of historical fact unless

‘plainly wrong’ or without evidence to support them.” Wolfe v. Commonwealth, 67 Va. App.

97, 101, 793 S.E.2d 811, 813 (2016) (quoting McGee v. Commonwealth, 25 Va. App. 193, 198,

487 S.E.2d 259, 261 (1997) (en banc)). In addition, “we give due weight to the inferences drawn

from those facts by resident judges and local law enforcement officers.” Smith v.

Commonwealth, 65 Va. App. 288, 295, 777 S.E.2d 235, 239 (2015) (quoting McGee, 25

Va. App. at 198, 487 S.E.2d at 261).

                                       A. Fifth Amendment

       The appellant argues that the trial court erred in denying his motion to suppress the

statements that he had “just parked [his] car and was going to sleep it off” and that the officers

had not seen him driving. He contends that Officer Keys questioned him when he was in

custody and had not yet received his Miranda warnings.

       Pursuant to the guarantees of the Fifth Amendment, “no ‘person . . . shall be compelled in

any criminal case to be a witness against himself.’” Gibson v. Commonwealth, 57 Va. App. 772,

778, 706 S.E.2d 541, 544 (2011) (quoting U.S. Const. amend. V). In order to protect this right,

                                                -4-
when law enforcement officers question a suspect who is in custody, they must first provide the

suspect with appropriate warnings pursuant to the Fifth Amendment. See Miranda, 384 U.S. at

467; Commonwealth v. Quarles, 283 Va. 214, 220, 720 S.E.2d 84, 87 (2012). Those warnings

include the right to remain silent, the right to an attorney, and the right to have that attorney

present during questioning by the police. Miranda, 384 U.S. at 467-70; Quarles, 283 Va. at 220,

720 S.E.2d at 87. “Statements obtained by law enforcement officers in violation of this rule

generally will be subject to exclusion for most proof purposes in a criminal trial.” Dixon v.

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

       The determination of whether a suspect is in custody and consequently “entitled to

Miranda warnings, presents a mixed question of law and fact.” Thompson, 516 U.S. at 102.

“[W]hen an individual is taken into custody or otherwise deprived of his freedom by the

authorities in any significant way and is subjected to questioning, the privilege against

self-incrimination is jeopardized.” Brooks v. Commonwealth, 282 Va. 90, 96, 712 S.E.2d 464,

467 (2011) (quoting Miranda, 384 U.S. at 478). An individual is “in custody” for Miranda

purposes only when he has been formally arrested or the police restraint on his “freedom of

movement” rises to the level “associated with a formal arrest.” Tizon v. Commonwealth, 60

Va. App. 1, 19, 723 S.E.2d 260, 269 (2012) (quoting Brooks, 282 Va. at 96, 712 S.E.2d at 467).

       Resolution of the issue turns on “how a reasonable person in the suspect’s situation

would have understood his circumstances.” Hasan v. Commonwealth, 276 Va. 674, 679, 667

S.E.2d 568, 571 (2008) (quoting Dixon, 270 Va. at 40, 613 S.E.2d at 401). The determination of

whether a suspect is in custody “requires an objective focus,” rather than a subjective view.

Dixon, 270 Va. at 40, 613 S.E.2d at 401. Thus, “if a reasonable person in the suspect’s position

would have understood that he or she was under arrest,” Miranda warnings “are required” before




                                                 -5-
questioning. Aldridge v. Commonwealth, 44 Va. App. 618, 642, 606 S.E.2d 539, 551 (2004)

(quoting Harris v. Commonwealth, 27 Va. App. 554, 564, 500 S.E.2d 257, 262 (1998)).

        Generally, “a person temporarily detained pursuant to an ‘ordinary traffic stop[]’ is not

‘in custody’ for the purposes of Miranda.” Harris, 27 Va. App. at 564, 500 S.E.2d at 262

(alteration in original) (quoting Berkemer v. McCarty, 468 U.S. 420, 440 (1984)). However, “a

detained motorist will be entitled to the protections set forth in Miranda if he . . . ‘thereafter is

subjected to treatment that renders him “in custody” for practical purposes.’” Id. (quoting

Berkemer, 468 U.S. at 440). This is the focus of the analysis here—whether the appellant was

essentially “in custody” rather than simply being held as part of an investigatory detention at the

time he made the challenged statements.

        There are a number of factors relevant to determining whether a suspect was in custody.

Pertinent circumstances include the manner in which the individual “was questioned, particularly

the number of officers present, the coercive character of the encounter, and the degree to which

[the person] was restrained.” Hasan, 276 Va. at 680, 667 S.E.2d at 571. In addition, courts

consider the duration of the interaction and “the extent to which the officers’ beliefs concerning”

the individual’s “potential culpability” were expressed. Harris, 27 Va. App. at 565, 500 S.E.2d

at 262. This list, while important for purposes of this case, is not exhaustive.

        The law provides many guideposts and factors to consider in this fact-driven analysis.

Nevertheless, “there is no ‘litmus-paper test for distinguishing . . . when a seizure exceeds the

bounds of an investigative stop.’” Id. at 566, 500 S.E.2d at 263 (quoting DePriest v.

Commonwealth, 4 Va. App. 577, 586, 359 S.E.2d 540, 544 (1987)). Each case must be reviewed

in light of application of the unique facts to the relevant law.

        “Drawing weapons, handcuffing a suspect, placing a suspect in a patrol car for

questioning, or using or threatening to use force does not necessarily elevate a lawful stop into a

                                                  -6-
custodial arrest for Miranda purposes.” Id. (quoting United States v. Leshuk, 65 F.3d 1105,

1109-10 (4th Cir. 1995)). In fact, “a brief but complete restriction of a suspect’s liberty is valid

under Terry[ v. Ohio, 392 U.S. 1, 9 (1968)], and the police are permitted to use methods of

restraint that are reasonable under the circumstances.” Id.

       In this case, Officer Keys had received radio calls about a disorderly person who was

intoxicated, possibly armed, and driving a light-colored Cadillac DeVille. Officer Keys spotted a

gray Cadillac DeVille in the vicinity. He and the other police officer had reason to believe that

the intoxicated driver was armed, so they told him to show his hands as they approached the

parked vehicle. When the appellant did not comply with the repeated commands and reached

forward, the police drew their weapons and forcibly removed him from the car. They

handcuffed him for their safety until they could determine whether he had any weapons. The

encounter was brief. The two officers did not use threatening language. The appellant was not

told that he was under arrest, nor was he put in a police car. A reasonable person would not have

believed that he was under arrest at the time that he made the statements. The restraint on the

appellant’s “freedom of movement” did not rise to the level “associated with a formal arrest.”

See Tizon, 60 Va. App. at 19, 723 S.E.2d at 269 (quoting Brooks, 282 Va. at 96, 712 S.E.2d at

467). Therefore, the appellant was not in custody for purposes of Miranda at the time that he

made the statements, and the trial court did not err by holding that he was not entitled to Miranda

warnings at that time.3

       In support of his position, the appellant cites Dixon, 270 Va. 34, 613 S.E.2d 398, and

Hasan, 276 Va. 674, 667 S.E.2d 568. In both cases, the Supreme Court of Virginia held that the



       3
         In light of this conclusion, we do not address the Commonwealth’s argument that any
error was harmless. See generally Blackman v. Commonwealth, 45 Va. App. 633, 639 n.1, 613
S.E.2d 460, 463 n.1 (2005) (noting that the Court’s holding that there was no Sixth Amendment
violation rendered analysis of the Commonwealth’s harmless error argument unnecessary).
                                                -7-
defendants were in custody for Miranda purposes. In Dixon, 270 Va. at 41, 613 S.E.2d at 401,

the Court concluded that a reasonable person subjected to the restraints of both handcuffs and

placement in a locked police car “would conclude that he was in police custody.” In Hasan, 276

Va. at 677, 667 S.E.2d at 570, six to eight police officers and a K-9 unit were present during a

traffic stop involving the defendant. The officers drew firearms, made a cone formation,

removed the defendant from the vehicle, and handcuffed him. Id. The Supreme Court noted that

“[t]he nature of the detention was not similar to an ordinary traffic stop.” Id. at 680, 667 S.E.2d

at 571-72. Under those circumstances, the Court found that a reasonable person in the

defendant’s position “would have understood that his freedom was being restricted to a degree

associated with a formal arrest.” Id. at 681, 667 S.E.2d at 572 (quoting Dixon, 270 Va. at 40,

613 S.E.2d at 401).

       Neither Dixon nor Hasan, however, suggest that a reasonable person in the appellant’s

position would have believed that he was under arrest at the time that he made the statements.

The numerous differences present in this case support the conclusion that the appellant was not

in custody for Miranda purposes. Here, there were only two police officers present. They

physically restrained the appellant only to the extent necessary to ensure their safety, briefly

drew their weapons, did not put him in a police car, and used no threatening language before

asking him any questions. Only one officer questioned the appellant and inquired as to what he

had been doing and did not communicate any particular suspicion of a crime. In addition, the

second question, whether the appellant had “been drinking,” did not “confront[]” the appellant

with “evidence of guilt.” See Wass v. Commonwealth, 5 Va. App. 27, 33, 359 S.E.2d 836, 839

(1987) (quoting United States v. Bautista, 684 F.2d 1286, 1292 (9th Cir. 1982)). Therefore, we

hold that the appellant was not in custody and Miranda warnings were not required prior to him

making the challenged statements.

                                                -8-
                                      B. Fourth Amendment

       The appellant argues that the “trial court erred when it denied [his] motion to suppress all

evidence obtained when the officers continued their detention of [him] despite having dispelled

the suspicion of criminal activity that initially justified the detention.” He contends that the

police failed to release him once they determined that he did not have a weapon and was not

engaged in disorderly conduct. He suggests that the police no longer had reasonable suspicion of

criminal activity and that instead, there was an “unreasonable seizure” of his person in violation

of the Fourth Amendment.

       “A defendant’s claim that evidence was seized in violation of the Fourth Amendment

presents a mixed question of law and fact that we review de novo on appeal.” McCain, 275 Va.

at 551, 659 S.E.2d at 515. “In making such a determination, we give deference to the factual

findings of the circuit court, but we independently determine whether the manner in which the

evidence was obtained meets the requirements of the Fourth Amendment.” Id. at 552, 659

S.E.2d at 515. In addition, “we give due weight to the inferences drawn from those facts by

resident judges and local law enforcement officers.” Smith, 65 Va. App. at 295, 777 S.E.2d at

239 (quoting McGee, 25 Va. App. at 198, 487 S.E.2d at 261). Police may briefly stop a citizen

for investigatory purposes, “if there are articulable facts supporting a reasonable suspicion that a

person has committed a criminal offense.” Sidney v. Commonwealth, 280 Va. 517, 524, 702

S.E.2d 124, 128-29 (2010) (quoting Hayes v. Florida, 470 U.S. 811, 816 (1985)).

       The appellant does not challenge his initial detention, but suggests that it was based on a

reasonable suspicion of only disorderly conduct by a possibly armed individual. The record,

however, demonstrates that the updated information provided by the dispatcher also supported

the reasonable suspicion that the appellant’s car matched the description of one being operated

by an intoxicated driver. See Code § 18.2-266 (prohibiting driving under the influence of

                                                -9-
alcohol or drugs, including driving while intoxicated). Further, in light of the report that the

driver in question was “possibly armed” and the appellant’s failure to comply with the repeated

orders to show his hands, the officers detained him in a reasonable manner to ensure their safety.

See, e.g., Kidd v. Commonwealth, 38 Va. App. 433, 444, 565 S.E.2d 337, 342 (2002) (noting

that during a lawful detention, a law enforcement officer “is ‘authorized to take such steps as

[are] reasonably necessary to protect [his and others’] personal safety’” (alterations in original)

(quoting Welshman v. Commonwealth, 28 Va. App. 20, 34, 502 S.E.2d 122, 128-29 (1998) (en

banc))); Harris, 27 Va. App. at 563, 500 S.E.2d at 261 (holding that the trooper’s “display of his

firearm” was “a reasonable response to [the defendant’s] failure to show his hands while moving

in [his] direction”).

        The appellant argues that once the officers determined that he was not armed they were

obligated to release him.4 This argument fails based on application of the law to the facts of this

case. The initial detention was necessary to investigate a report about an intoxicated driver in a

car of the same make and model as the appellant’s vehicle. A temporary detention is proper

under the Fourth Amendment if, under the “‘totality of the circumstances[,]’ . . . the detaining

officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” Mason, 291

Va. at 368, 786 S.E.2d at 151 (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). “The

test is not what the officer thought” but, rather, “whether the facts and circumstances apparent to

him at the time of the [seizure] were such as to create in the mind of a reasonable officer in the

same position a suspicion that a violation of the law [had occurred,] was occurring[,] or was

about to occur.” Id.; see, e.g., Hairston, 67 Va. App. at 565, 797 S.E.2d at 800. This standard




        4
        Generally, “a police stop exceeding the time needed to handle the matter for which the
stop was made violates the Constitution’s shield against unreasonable seizures.” Rodriguez v.
United States, 135 S. Ct. 1609, 1612 (2015).
                                              - 10 -
“requires far more than an officer’s ‘hunch’ or ‘gut feeling’ but far less than actual proof.”

Mason, 291 Va. at 369, 786 S.E.2d at 152.

       Based on the information received from dispatch, the officers believed that they were

looking for an intoxicated driver who may have been armed. They saw the appellant sitting in a

car that matched the description and was parked in the area of the report. Once they interacted

with the appellant, the officers personally observed that he smelled of alcohol and had bloodshot

eyes. His speech was slurred, and his face was flushed. He repeatedly refused to show his hands

when ordered to do so. The appellant told the officers that he “just parked [his] car and was

going to sleep it off” and that he had removed his keys from the ignition and threw them in the

back seat. When asked if he had been drinking, the appellant replied, “It doesn’t matter, I wasn’t

driving.”

       In light of these facts, regardless of whether the officers were no longer investigating the

initial disorderly conduct report or whether they believed that the appellant was armed, the facts

clearly supported reasonable suspicion that the appellant had been driving while intoxicated.

Rather than dispelling the suspicion that the appellant had operated the vehicle under the

influence of alcohol, the circumstances that quickly developed during the detention bolstered that

suspicion. At that point, the officers had, at the very least, reasonable suspicion to continue to

detain the appellant to investigate further.5 See Enrique v. Commonwealth, 283 Va. 511, 517,

722 S.E.2d 252, 255 (2012). Consequently, the continued detention was permitted under the




       5
         In light of this conclusion, which is consistent with the analysis conducted by the trial
court, we do not address the Commonwealth’s argument that the circumstances established
probable cause to arrest the appellant. See, e.g., McGhee v. Commonwealth, 280 Va. 620, 624,
701 S.E.2d 58, 60 (2010) (explaining the probable cause standard).

                                               - 11 -
circumstances to allow the officers to confirm or dispel the suspicion that the appellant had

operated the vehicle while under the influence of alcohol.6

       Applying the standard of objective reasonableness to the totality of the circumstances, the

evidence supports the conclusion that the officers had, at the very least, reasonable suspicion to

continue the investigatory detention up to the point of the arrest. Therefore, the trial court did

not err in denying the motion to suppress.

                                        III. CONCLUSION

       The evidence, viewed under the proper standard, establishes that when the officers

initially detained the appellant, he was not in custody for purposes of Miranda. Further, the

totality of the circumstances supports the conclusion that the officers had reasonable and

articulable suspicion of illegal activity to continue the appellant’s detention beyond the concerns

of disorderly conduct or that he was armed in order to investigate whether he was driving while

intoxicated. Consequently, we hold that the circuit court correctly denied the appellant’s motion

to suppress. For these reasons, we affirm the conviction for driving under the influence of

alcohol.

                                                                                           Affirmed.




       6
         Officer Keys did in fact attempt to do so by telling the appellant that he wanted to
conduct field sobriety tests and offering a breath test, but the appellant refused to participate. He
was then arrested for driving under the influence of alcohol.
                                                - 12 -
